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

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…

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: [2020] ACTSC 69
Decision Date: 30 March 2020

CaseChat Overview and Summary

In the case of R v Kemppainen; R v Rose, the defendants were sentenced by the Supreme Court of Queensland for their involvement in an incident that resulted in grievous bodily harm to a victim. The defendants were co-offenders in an attack that occurred during a public health emergency, which was a significant factor in the court's sentencing considerations. The case involved complex issues of criminal law, particularly in relation to the appropriate sentencing for the defendants given their roles in the assault and the impact of the public health emergency on their actions.

The primary legal issue the court had to address was the determination of an appropriate sentence for the defendants, taking into account the nature and circumstances of the offence, the role each defendant played, and the broader context of the public health emergency. The court also needed to consider the defendants' previous criminal records, with one having a history of violent offences. The court's approach to sentencing was guided by the principles of proportionality and deterrence, ensuring that the punishment fit the crime while also considering the need to protect the community.

In delivering its judgment, the court emphasised the severity of the defendants' actions and the harm caused to the victim. The court noted the significant impact of the public health emergency on the circumstances of the offence but did not consider it a mitigating factor in the sentencing. The court balanced the need for punishment with the need for rehabilitation, leading to the imposition of a two-year good behaviour order for Rose and a sentence range of two and a half to three years for Kemppainen. The court's decision reflected a careful consideration of all relevant factors, including the defendants' criminal histories and the nature of their involvement in the assault.

The final orders of the court were that Rose be sentenced to a two-year good behaviour order and that Kemppainen be indicated a sentence range of two and a half to three years. This outcome reflects the court's determination that the defendants' actions warranted significant punishment, while also considering the broader context of the public health emergency and the need to protect the community.

Orders

Orders of the court

Rose sentenced to two-year good behaviour order. Kemppainen indicated sentence range two and a half to three years.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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