R v Kemppainen; R v Rose
[2020] ACTSC 69
•30 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kemppainen; R v Rose |
Citation: | [2020] ACTSC 69 |
Hearing Dates: | 30 March and 2 April 2020 |
DecisionDate: | 30 March 2020 |
ReasonsDate: | 2 April 2020 |
Before: | Murrell CJ |
Decision: | Rose sentenced to two-year good behaviour order. Kemppainen indicated sentence range two and a half to three years. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Recklessly inflict grievous bodily harm – Common assault – Co-offenders – Where offender has previous violent offence – Public health emergency |
Legislation Cited: | Crimes Act 1900 (ACT) ss 20, 26 Crimes (Sentencing) Act 2005 (ACT) ss 13, 17 |
Cases Cited: | R v Sikoulabot [2018] ACTSC 217 |
Parties: | The Queen (Crown) Matti Bruce Kemppainen (Offender) Tonie Belinda Rose (Offender) |
Representation: | Counsel D Sahu Khan / A Williamson (Crown) J Sabharwal (Offender Kemppainen) D Berents (Offender Rose) |
| Solicitors ACT Director of Public Prosecution (Crown) Sharman Robertson (Offender Kemppainen) Boxall Legal (Offender Rose) | |
File Number(s): | SCC 141 of 2019 SCC 26 of 2020; SCC 27 of 2020 |
Murrell CJ
Introduction
The offender Toni Belinda Rose is to be sentenced for two offences of common assault.
The offender Matti Bruce Kemppainen is to be sentenced for one offence of recklessly inflicting grievous bodily harm.
The offence of common assault is contrary to s 26 of the Crimes Act 1900 (ACT). It carries a maximum penalty of two years’ imprisonment.
The offence of recklessly inflicting grievous bodily harm is contrary to s 20 of the Crimes Act 1900 (ACT). It carries a maximum penalty of 13 years’ imprisonment.
Neither offender has spent any period in custody in relation to the offences.
In each case, the offender pleaded guilty on 30 March 2020, the day when the trial was fixed to commence.
As Ms Rose offered to plead guilty to the offences in question at the criminal case conference, ordinarily she would receive a discount of between 15 and 20 per cent on the sentence that would have otherwise been imposed.
Mr Kemppainen’s guilty plea was indicated on the Friday before the Monday when the trial was fixed and would ordinarily attract a discount of around 10 per cent on the sentence that would otherwise have been imposed. However, I accept his submission that, as the current public health emergency makes it extremely difficult to manage jury trials, there is an increased utilitarian value to the plea. The discount that would otherwise have been 10 per cent should be increased to 15 per cent to take this consideration into account.
Facts
BN and his wife TN resided at the Canberra South Motor Park, as did the offenders (a de facto couple) and their young child.
On 13 October 2017, BN and TN and Mr Kemppainen were independently drinking and socialising at the Monaro Tavern, a licensed tavern at the Park. Ms Rose was at home with her young son.
When the Tavern closed at about 11:30 PM, BN, TN and Mr Kemppainen left.
While Mr Kemppainen was walking back to his unit, he nudged TN and insulted her. She was heavily intoxicated. Further insults were exchanged between TN and Mr Kemppainen. BN tried to de-escalate the situation. However, TN and Mr Kemppainen continued to argue as they approached Mr Kemppainen's nearby cabin.
Ms Rose came out of the cabin. Mr Kemppainen directed Ms Rose to “keep [TN] here”. Ms Rose grabbed TN by the hair and began to punch her in the face (first common assault), while Mr Kemppainen went inside and retrieved a baseball bat. BN stood about five metres distant, shouting at Ms Rose to leave his wife alone.
After retrieving the baseball bat, Mr Kemppainen paced quickly towards BN, swearing aggressively. Mr Kemppainen raised the baseball bat above his head and brought it down forcefully on BN, who lifted his left arm in an endeavour to protect his head (recklessly inflict grievous bodily harm). The back of his left forearm was severely impacted. He heard a loud crack, felt the bones sticking out of his arm, and experienced excruciating pain. He began to bleed heavily.
Meanwhile, Ms Rose again grabbed TN’s hair (second common assault) and there was pushing and shoving between the women as TN attempted to defend herself.
BN lay in the gutter, clutching his arm. Mr Kemppainen used the baseball bat to prod BN in the abdomen while threatening him that he must stay away from Mr Kemppainen and his family.
Mr Kemppainen paced back towards TN and Ms Rose while swearing aggressively.
TN called 000. BN was taken by ambulance to hospital.
Police obtained a search warrant for the offenders’ cabin. Inside, they found an anodised baseball bat under the bed in the main bedroom.
BN sustained compound fractures to the radius and ulna bones of his left forearm. After an unsuccessful attempt at closed reduction, he was placed under general anaesthetic and medical staff performed an open reduction with internal fixation involving the use of pins, plates, wires, and screws to stabilise the fractured bones.
Victim impact
At the time of the incident, BN suffered excruciating pain. He underwent surgery under general anaesthetic. When released from hospital, he was required to take strong painkilling medication.
In August 2018, Associate Professor Parekh reported that BN may require further surgery under general anaesthetic. She stated that he may experience ongoing pain, reduced mobility of the left wrist joint and forearm, increased risk of arthritis in the left wrist and elbow joints, and psychological effects.
It would appear that BN is experiencing pain and arthritis; his ongoing pain is worse in winter.
According to his wife, BN is preoccupied with the scars on his arm.
In a victim impact statement, BN stated that the incident had made him chronically depressed and that he had experienced suicidal thoughts. He has had difficulty sleeping. TN stated that BN experiences nightmares in which he yells and pushes her. He is fearful for his safety and that of his family. He does not like to leave his home. He is distrustful. He fears an encounter with Mr Kemppainen and when in public, he often imagines that he has seen Mr Kemppainen.
BN takes antidepressant medication and sleeping tablets. The antidepressant medication is expensive. He has always consumed a significant amount of alcohol, but his alcohol consumption has increased, and he is “drinking heavily to try to forget about the incident”.
The injury has affected BN’s ability to engage in his usual work as a labourer and roadworker. He cannot do heavy lifting and is restricted to light duties. However, even holding traffic signs causes pain. In effect, he is unable to work. He cannot participate in sporting activities that he used to enjoy. Among other things, he can no longer enjoy playing football with his stepson. He cannot drive and relies upon his wife to transport him.
Because he was unable to earn an income, at one stage BN and his wife became homeless and had to seek shelter with BN’s mother. Their financial and living circumstances are stressful. The marriage has been placed under strain.
Objective seriousness
Ms Rose
Both offences committed by Ms Rose were of significant objective seriousness.
The first assault occurred before Mr Kemppainen had retrieved the baseball bat. Ms Rose was not the instigator and she was following her partner’s instructions without understanding the full context of what had occurred. Nevertheless, she chose to punch TN in the face, which rendered the assault of significant seriousness.
The second assault involved only a grabbing of the hair but it occurred in the context that Ms Rose was, in effect, restraining TN while her partner was assaulting BN.
Through her counsel, Ms Rose submitted that she had overreacted as she was protecting her child. I find it rather hard to accept that she thought that there was any threat to the child.
The offences committed by Ms Rose were much less serious than that committed by Mr Kemppainen.
Mr Kemppainen
The objective seriousness of the offence of recklessly inflicting grievous bodily harm is to be determined by reference to the culpability of the offender’s conduct and the degree of grievous bodily harm that was occasioned.
The offence committed by Mr Kemppainen was objectively serious. It involved the use of a weapon, the baseball bat. It was a cowardly and unprovoked assault on the victim, who had been attempting to de-escalate the aggressive exchange between Mr Kemppainen and the victim’s wife. In effect, it was an attack on a peacemaker. The offence was unplanned, but it was not entirely spontaneous; it occurred after the offender had entered his cabin and retrieved the baseball bat.
Associate Professor Parekh reported that BN’s injuries were “clinically significant”. The resulting surgery left permanent scarring and BN needs ongoing treatment to manage his injuries. As is the case with all injuries amounting to grievous bodily harm, the victim sustained very serious injuries. Within the range of injuries that may constitute grievous bodily harm, the harm was not at the most serious end of the range. However, it had a devastating impact on the victim, both physically and mentally.
Subjective features
Ms Rose
At the time of the offences, Ms Rose was 25 years old.
She had no prior criminal history and I am informed that there is no subsequent criminal history. That is a matter of some relevance considering that the offence occurred about two and a half years ago.
Referees described the offender as kind, caring, and supportive towards them in times of need and as a good mother to her young son, who is now three and a half years old.
Ms Rose has separated from Mr Kemppainen, although the two maintain contact in relation to their child.
Ms Rose is now the principal carer for the child and the pair live in supported accommodation.
Mr Kemppainen
At the time of the offence, Mr Kemppainen was 27 years old.
The most relevant matters on Mr Kemppainen’s prior criminal record concern an incident that occurred in 2012, and include one count of possess offensive weapon, for which he was sentenced to a nine-month good behaviour order. In addition, his prior criminal history contains convictions for driving offences, including drink driving, and a conviction for possession of a prohibited drug.
In April 2019, he engaged in domestic violence towards the co-offender, Ms Rose, for which he was fined $1,500. The commission of the domestic violence offence casts some doubt on the offender's rehabilitation and also indicates that the offence for which I am sentencing him is not out of character; the offender had committed an offence involving possession of an offensive weapon prior to the subject offence and subsequently committed the domestic violence offence.
The offender shares custody of his son with the co-offender and supports his son financially.
He is employed as a dogman and rigger. He is a mature worker who is highly regarded in the workplace for his knowledge and responsible approach. He trains some of the junior staff in the company for which he works. He is described as an “invaluable” employee.
Referees state that the offender is remorseful and upset about the harm that he has caused.
In the past, he has engaged in substance abuse and has had difficulty with anger management. However, he has been drug-free for three years.
Family members described the offender as a caring and responsible parent to his son and godson, although the recent offence of domestic violence must cast some doubt on that assessment. He enjoys positive relationships with his friends’ children. Referees say that the offender is now focused on being a proper role model for his son and other young men and is on a much more positive trajectory.
I am satisfied that Mr Kemppainen has reasonable prospects of rehabilitation. He has demonstrated a sustained period of abstinence from drugs and has strong supports through his family and employment. However, the offence of domestic assault committed last year causes some concern.
Sentencing considerations
Ms Rose
It was submitted that I should proceed under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I consider such a course to be quite inappropriate; it would completely fail to recognise the objective seriousness of the offences and the fact that there were two offences. It was not just a case of one isolated offence.
However, I am prepared to proceed by way of a good behaviour order. The offender is a person of no prior criminal history. She has indicated remorse and has accepted responsibility through her pleas. I consider that the imposition of a good behaviour order would adequately reflect the seriousness of the offences.
In imposing the good behaviours orders, I take into account the offender’s entitlement to a sentencing discount.
Mr Kemppainen
I am required to take into account the sentencing purposes in s 7 of the Sentencing Act. Serious offences of violence associated with alcohol consumption call for a strong message of general deterrence. Other relevant sentencing purposes include accountability, denunciation, and recognition of harm to the victim.
The Court was taken to the decision of R v Sikoulabot [2018] ACTSC 217 (Sikoulabot), in which the offender was sentenced to two years’ imprisonment to be served by way of an intensive correction order involving the performance of 250 hours of community service work. In that case, the victim had invited the offender to engage in a fight in which both participated. The offender punched the victim twice, the victim fell to the ground, the offender picked up the victim by the legs and dropped him onto the pavement and then kicked the victim in the jaw and left.
Unlike the present case, the victim had provoked the offender and no weapon was used. The offender had offered to engage in restorative justice. He was young, remorseful, and had completed a course in anger management. He had only one prior conviction, which was not for a matter of violence. He pleaded guilty in the Magistrates Court.
In Sikoulabot, Loukas-Karlsson J referred to a number of decisions of this Court involving sentences for offences of recklessly inflicting grievous bodily harm. In those cases, the starting point for sentence was generally in the range of two to three years. In some cases, the offender was sentenced to an intensive correction order and required to perform community service work.
The ACT Sentencing Database contains a sample of 46 cases. In about half of those cases, a sentence of full-time imprisonment was imposed. Generally, the sentences of full-time imprisonment were in the range of two to four years. Thirteen per cent of cases resulted in a partially suspended sentence and nine per cent resulted in an intensive correction order.
I am well aware of the limitations of sentencing statistics but, in this case, the sentencing statistics are consistent with the sentences imposed in the comparable cases referred to in Sikoulabot.
Sentences
Ms Rose
In each case, Ms Rose is convicted and, under s 13 of the Sentencing Act, I make an order requiring her to sign an undertaking to comply with good behaviour obligations for a period of two years. I impose no supervision condition.
It is extremely important that Ms Rose comply with the good behaviour order. If she fails to do so, she will be brought back to the Court to answer the breach.
Mr Kemppainen
As stated above, the offence committed by the offender was objectively serious. The offender advances reasonably strong subjective circumstances. However, at the time of the offence, he was neither a very young man nor a person of prior good character in relation to similar matters. Ordinarily, sentencing purposes such as general deterrence, accountability, and denunciation would demand that he spend at least some period in full-time imprisonment as the only appropriate outcome.
However, the Territory is experiencing a public health emergency, which commenced several weeks ago and may last six months or longer. During the emergency, imprisonment will be much more onerous than usual because it will be associated with a greatly increased risk of contagion and a high risk of the prisoner spending long periods of confinement to cell. On the other hand, there is little risk to the community associated with Mr Kemppainen remaining in the community for the time being.
An adjournment of the final sentencing hearing will provide the offender with an opportunity to demonstrate continuing rehabilitation and enable him to engage in appropriate courses, consider restorative justice, and take other measures that may inform the manner in which the sentence is ultimately served. Further, it will enable his legal representatives to obtain a psychological report, which may assist me to decide where the sentence should fall in the indicative range and how it should be served.
In my view, the appropriate range of sentence is two and a half to three years’ imprisonment as a starting point, with a discount of 15 per cent for the plea of guilty.
The offender seeks an assessment for an intensive correction order, and I make that request. I ask that the assessment report clearly indicate what would occur under an intensive correction order during the period of the public health emergency and whether and to what extent community work will be available to persons sentenced to an intensive correction order during the emergency.
I adjourn the proceedings to Tuesday, 16 June 2020 at 9.30 AM to receive the intensive correction order assessment report and any further evidence that may be available at that point with a view to determining length of sentence, but not necessarily the manner in which it will be served.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: |
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