SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
R v Kekalainen (No 3)
Citation:
[2016] ACTSC 297
Hearing Date:
28 September 2016
Decision Date:
10 October 2016
Before:
Refshauge ACJ
Decision:
1.
I cancel the Good Behaviour Order made on 11 November
2015.
2.
I note that on 29 April 2014 you were convicted of culpable
driving on 15 March 2013 causing death.
3.
I sentence you to three years and four months
imprisonment to commence on 1 September 2015, to take
account of pre-sentence custody. Had you not pleaded
guilty, I would have sentenced you to five years
imprisonment.
4.
The sentence be suspended on 24 October 2016 for
18 months.
5.
I require you to sign an undertaking to comply with the
offender’s Good Behaviour Obligations under the Crimes
(Sentence Administration) Act 2005 (ACT) for a period of
18 months from 24 October 2016.
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – Judgment and punishment – sentencing –
breach of Good Behaviour Order – driving whilst disqualified –
admitted breach – subjective circumstances – consideration –
deterrence
Legislation Cited:
Crimes (Sentence Administration) Act 2005 (ACT), ss 82A, 107,
110
Crimes (Sentencing) Act 2005 (ACT), ss 7, 12, 33
Cases Cited:
Cotter v Corvisy (2008) 1 ACTLR 299
Guy v Anderson [2013] ACTSC 5
Muldrock v The Queen (2011) 244 CLR 120
R v Curtis (No 2) [2016] ACTSC 34
R v Kekalainen [2014] ACTSC 132
R v Kekalainen (No 2) [2015] ACTSC 369
R v Slattery (1996) 90 A Crim R 519
Saga v Reid [2010] ACTSC 59
Parties:
The Queen (Crown)
Mark Kalevi Kekalainen (Defendant)
Representation:
Counsel
Ms K MacKenzie (Crown)
Mr J Lawton (Defendant)
Solicitors
ACT Director of Public Prosecutions (Crown)
Rachel Bird & Co (Defendant)
File Numbers:
SCC 219 of 2013
REFSHAUGE ACJ:
1.
These proceedings have the genesis in an event on 15 March 2013. It is as well to
recall that though much has happened since then.
2.
On that day, the offender, Mark Kalevi Kekalainen, was driving a motorcycle with a
pillion passenger with whom he had been in a relationship. The relationship was “on
hold” for some time but they remained close friends.
3.
They drove on Mr Kekalainen’s motorcycle to the Cotter where they talked for some
time and then drove home.
4.
On the way home, Mr Kekalainen, unfortunately, lost control of the motorcycle and
crashed, killing the pillion passenger. Mr Kekalainen was shown to have had, at the
time of his driving, a blood alcohol concentration of 0.152 grams per 100 millilitres of
blood, at the lower end of a Level 4 reading, nearly three times the permitted
concentration.
5.
Mr Kekalainen was charged with culpable driving whilst he was under the influence of
alcohol so as not to have a proper control of the motorcycle which caused the death of
the pillion passenger.
6.
Mr Kekalainen was summonsed to appear in the Magistrates Court on that charge to
which he ultimately pleaded guilty and was, on 12 December 2013, committed to this
Court for sentence.
7.
On 29 April 2014, I sentenced Mr Kekalainen to three years and four months
imprisonment. The first nine months of the sentence were to be served by full-time
custody and the next 12 months to be served by way of periodic detention with the
sentence suspended on 28 January 2016 for two years. See R v Kekalainen
[2014] ACTSC 132.
8.
Mr Kekalainen completed the period of full-time custody but struggled to comply with
his periodic detention obligations. It created considerable psychological stress for him
and, ultimately, the Sentence Administration Board, on 25 August 2015, conducted an
inquiry from which it concluded that the alcohol abuse that he was experiencing,
apparently caused by the psychological distress, meant that he was unlikely to be able
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to complete the balance of the periodic detention. As a result, the Board referred
Mr Kekalainen back to me as the sentencing Judge.
9.
On 11 November 2015, I re-sentenced Mr Kekalainen under s 82A of the Crimes
(Sentence Administration) Act 2005 (ACT) to three years and four months
imprisonment to commence on 1 October 2014, to take into account pre-sentence
custody, being both the period of full-time imprisonment and the periods of periodic
detention already served. I then suspended the sentence that day for 27 months and,
as required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), made a Good
Behaviour Order for 28 months with a probation condition, a community service work
condition, and a disqualification of him from holding or obtaining a licence for two
years. See R v Kekalainen (No 2) [2015] ACTSC 369.
10.
At the time of re-sentencing, Mr Kekalainen had been convicted on 9 September 2015,
of being a first offender driving whilst disqualified.
For reasons set out in
R v Kekalainen (No 2) at [11]-[13], I held that this conviction did not breach one of the
conditions of the periodic detention order which, accordingly, was not required to be
cancelled although, of course, I took into account the fact of the conviction and the
circumstances of the offending when making my decision.
11.
Unfortunately, Mr Kekalainen drove a motor vehicle again on 29 May 2016 and, on
18 July 2016 was convicted of being a repeat offender driving whilst disqualified. He
was fined $1200 and was disqualified from holding or obtaining a driver licence for two
years from that day.
12.
This conviction constituted a breach of the Good Behaviour Order I had made on
11 November 2015 and, accordingly, the Magistrates Court, acting under s 107 of the
Crimes (Sentence Administration) Act referred the matter to me.
13.
Mr Kekalainen admitted the breach of the Good Behaviour Order.
The Law
14.
Where a court is satisfied that an offender has breached any of the offender’s Good
Behaviour Obligations under a Good Behaviour Order made when a sentence of
imprisonment was suspended, the Court must, under s 110 of the Crimes (Sentence
Administration) Act cancel the Good Behaviour Order. The Court then, under that
section, has a wide discretion, either to impose the sentence suspended on sentencing
for the offence or to re-sentence the offender for the offence. That offence is, in this
case, the offence of culpable driving causing death.
15.
In Saga v Reid [2010] ACTSC 59 at [99]-[101], I adopted what had been said in other
cases, namely, that the failure of courts to act where there has been a clear breach of
the conditions of a conditional release order, such as a Good Behaviour Order,
imposed when a sentence of imprisonment is suspended and by which the offender
has avoided being sentenced to full-time imprisonment, is likely to bring such
sentences into disrepute.
16.
Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]-[87], there is,
in this jurisdiction, no presumption in favour of imposing the original sentence that had
been suspended. Thus, a court may, in an appropriate case, re-sentence the offender
and that may involve imposing the same sentence, including suspension of the term of
imprisonment, as originally imposed.
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17.
That re-sentencing, however, will take into account the fact that the basis on which the
sentence was suspended and the offender permitted to serve the sentence or the
balance of the sentence of imprisonment in the community, was that the offender could
be trusted. The breach of a Good Behaviour Order, particularly by the commission of
further offences, naturally erodes that trust.
18.
In R v Curtis (No 2) [2016] ACTSC 34 at [17]-[19], I said:
17. Over time, a number of considerations have been identified as relevant to the decision
as to the appropriate response to the breach of a Good Behaviour Order.
18. These include the proportion of the term of the Good Behaviour Order that had been
served without breach, any rehabilitation attained by the offender prior to the breach,
the nature of the offence which breached the order, including whether it is similar to
the offence for which the sentence of imprisonment, then suspended, was imposed,
the relative seriousness of the offence so that the imposition of the suspended
sentence would be disproportionate to the gravity of the breach offending; and, the
prospects of the offender's rehabilitation.
19. Indeed, with re-sentencing, the legislation expressly applies the Crimes (Sentencing)
Act 2005 (ACT), to any re-sentencing, which permits all relevant factors on sentencing
to be taken into account.
19.
Thus, to determine how to proceed, I need to have regard to the factors relevant to
sentencing and, any circumstances since the original sentencing.
The offence
20.
I indicated in R v Kekalainen that, while the offence was a serious one, it was also one
of great tragedy.
21.
Although Mr Kekalainen had one prior conviction for driving with a prescribed
concentration of alcohol, he did not have a particularly bad traffic record but, as
Hunt CJ at CL said in R v Slattery (1996) 90 A Crim R 519 at 523, the offence is often
committed by persons who are “not in any sense members of the criminal class or who
even have criminal convictions against them”.
22.
Further, of course, Mr Kekalainen has lost a close friend and feels that keenly. I also
accept the great distress and loss suffered by the parents of the victim and whose
Victim Impact Statements made such harrowing and sad reading.
Subjective circumstances
23.
Mr Kekalainen is 47 years old. He grew up in Canberra, the fourth child of a family of
six children but, unfortunately, both his mother and his step-father were heavy drinkers
as his siblings became. He has, however, had close connections with his extended
paternal family.
24.
He has been employed in the building industry for most of his working life and
justifiably feels pride in the work that he has done. He managed to regain employment
shortly after release from his imprisonment and to retain that work despite the
disqualification from holding or obtaining a driver licence clearly causing some
difficulties for him.
25.
Mr Kekalainen’s marriage ended in acrimonious circumstances in 2011. There were
two children of the marriage with whom he keeps in close contact; indeed, the younger
child, still at school, lives with him. She resides with Mr Kekalainen during the week
but at the weekends resides with her mother.
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26.
He continues to make a significant financial contribution to the childrens' welfare and
his daughter described herself as reliant on him “for financial and mental support while
studying”.
27.
Mr Kekalainen has suffered from psychological distress and mood disturbance. He
sought counselling for that. Some of that clearly related to the trauma of the collision
which resulted in the offence for which I sentenced him.
28.
As noted above, Mr Kekalainen has a criminal history consisting now of seven offences
all, save one, involving the use of a motor vehicle. I have noted the earlier drink-driving
offence but neither of the more recent driving offences, driving whilst disqualified,
involve alcohol. Indeed, it seems that Mr Kekalainen has managed to control his
alcohol use.
29.
I have had, for each of the occasions when I have had to sentence Mr Kekalainen,
references from colleagues. They continue to support him and describe a hard worker
with strong work ethics as well as someone who has shown great integrity and
generosity to those in difficulties and treats his work with a desire for a fair outcome.
30.
On this occasion, he was described as “a valued member of the community” with “an
ability to maintain a responsible attitude to work and life”.
31.
He is currently assisting an employer with a proposed $20 000 000 contract and, once
the contract is signed, he will hold the position of site manager.
32.
A reference from the director of that company describes him as “well regarded and
respected by the industry authorities, the client and project peers”. He is described as
“a key individual as insurance for achieving our companies [sic] future long-term growth
and success”.
33.
It appears that that project is expected to commence in three to four weeks time.
34.
Mr Kekalainen has continued to address his psychological challenges. He has been
seeing Dr Rebecca Jackson, a qualified and experienced psychologist.
35.
He told me in evidence that his mental health had improved a lot but he continues to
see Dr Jackson every couple of months. He still has nightmares and, of course, the
stress of possibly appearing in Court has been disruptive but it appears that generally
his mental health has improved.
The breaching offence
36.
The circumstances of the offence which breached the Good Behaviour Order are as
follows. Mr Kekalainen was undertaking a private construction job on a residence
where, it appears, a psychologist also conducted her business. He had been at the
site on two previous occasions. He had made arrangements with a friend to transport
him and I saw a letter from the friend who had known Mr Kekalainen for around five
years and he had formed the opinion that he was “someone that works hard, cares for
his children and tries to be a good person”.
37.
Unfortunately, on the Sunday when the incident occurred, his friend was ill and unable
to assist.
38.
Mr Kekalainen made contact with the client telling her that he would be unable to
attend that day. She replied that she had removed the old doors that were to be
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replaced and that, unless he was able to install the new doors, she would not have
secure premises and would not be able to work the next day.
39.
Mr Kekalainen very foolishly decided that, in order to keep faith with his client and not
interfere with her work, he had to attend at the premises. His daughter was, I assume,
with her mother. He needed tools and told me that they would not be able to fit into a
taxi. He described the tools and I am satisfied that this would have provided a problem
for him. Accordingly, he decided to drive to the job, which he completed, and he was
then intercepted by police on the way home.
40.
In cross-examination before me, the Crown explored some of the options available to
him.
41.
It is easy in the clinical situation of the Court to identify alternatives to the action he
took and which was not only a breach of the law but also a breach of his Good
Behaviour Order conditions. There was, for example, no explanation as to why his
daughter or, another work colleague who are so supportive of him, might not, in the
particular circumstances, be able to assist or why, for example, the client could not be
asked to drive his vehicle to the site.
42.
The offence is, of course, not as serious as the offence of culpable driving judged by
the maximum penalties (Muldrock v The Queen (2011) 244 CLR 120 at 133; [31]).
43.
It was submitted by the Crown that it was a contumacious breach of the driving laws.
See Cotter v Corvisy (2008) 1 ACTLR 299 at 307-8; [36]-[38].
44.
I there described a contumacious act, as opposed to one that was merely wilful, as one
where the person doing it knows that it is prohibited and has no reasonable excuse for
doing it, or no reasonable belief that it can be excused.
45.
In this case, it is clear that Mr Kekalainen knew that he was disqualified from holding or
obtaining a driver licence. He had made efforts to put into place arrangements allowing
him to continue working but without himself having to drive. On this occasion, these
arrangements fell apart. Mr Kekalainen obviously, consistently with the assessment of
his referees, felt obliged to secure his client’s premises so that she would be able to
work the following day. While, at law and, perhaps, objectively, he had no reasonable
excuse for driving, he clearly believed there was some justification for him doing what
he did.
46.
It was a breach, a serious breach of his obligations and cannot be condoned, but the
explanation does, in my view, remove it from a contumacious act of driving.
Nevertheless, as a second breach of his obligations under the disqualification of his
licence since sentencing, it cannot be disregarded or minimised.
47.
That it was a matter of driving which was a part of the original offence also makes the
breach more serious.
Consideration
48.
As required, I have regard to the purposes of sentencing set out in s 7 of the Crimes
(Sentencing) Act. As noted in R v Kekalainen at [22]-[24], general deterrence and
punishment are important considerations in this case.
49.
On sentencing now, with the knowledge of events since I first sentenced
Mr Kekalainen, some element of specific deterrence is also important because of the
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continuing disobedience of Mr Kekalainen to the criminal law in the very area of
conduct he originally breached.
50.
I accept that Mr Kekalainen has pleaded guilty not only to the original offence but also
to the two subsequent offences and, in particular, to the offence which breached the
Good Behaviour Order.
51.
I have regard to the matters set out in s 33 of the Crimes (Sentencing) Act. So far as I
know them, they are set out above and in the two earlier decisions, R v Kekalainen and
R v Kekalainen (No 2). I take all those matters into account.
52.
I accept that Mr Kekalainen had made sensible arrangements for transport so as to
avoid breaching his obligations. I also accept that this occasion, like the other, was an
isolated incident. The Crown did not suggest that there had been other examples of
undetected breaches by Mr Kekalainen.
53.
I note, too, that Mr Kekalainen has completed the community service work which was a
condition of the sentence I imposed when re-sentencing him. It is said that he
completed it in a satisfactory manner. I also note that his supervision condition was
terminated earlier because “his case plan objectives were met and he appeared
stable”.
54.
I also noted that the store where he completed his community service work benefitted.
The store manager wrote that he “impressed [her] with his hard work ethic, his honesty,
his family values and his pleasant nature”.
55.
He was said to perform the work “quickly and well” and was “dependable”. He had
“earnt [sic] the respect of his peers at the store, working cohesively in the team
environment”.
56.
Indeed, he had discussed the possibility of continuing to work in the store which the
store manager was keen to take up as he had “displayed a rare integrity” and worked
“hard”.
57.
This is a very difficult sentencing exercise. I am impressed with the continued
rehabilitation that Mr Kekalainen has achieved. His mental health is clearly much
improved and he continues to work effectively and to the admiration of his peers and
his employers.
58.
His commitment to a high work ethic has, in a sense, brought him undone on this
occasion for his commitment to his client led him to engage in the serious breach of the
Good Behaviour Order.
59.
That breach is serious, particularly in the context of the earlier offence of driving whilst
disqualified. That means that the trust I reposed in Mr Kekalainen by the release on a
Good Behaviour Order has to an extent been undermined and, as I have noted, needs
to be marked by a severe response.
60.
I have regard, as I am required to do, to the interests of Mr Kekalainen’s daughter who
is at an important time of her life and for whom a greater sentence than that I will
impose may prejudice her present progress.
61.
I note that Mr Kekalainen completed a little over six months of the Good Behaviour
Order before this breach occurred.
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62.
Regrettably, the offence is, in a sense, related to the original offence as it arose out of
his driving although, in this case, it must be noted that there was no allegation of any
manner of driving that brought Mr Kekalainen to the notice of police.
63.
It seems to me that some punishment is required but it should be modest because of
the circumstances of the offending and the rehabilitation that he has achieved.
Nevertheless, having considered all the reasonable alternatives, including a fine, a
community service work condition to a further Good Behaviour Order and, indeed, an
Intensive Correction Order, I consider that a short period of imprisonment is inevitable.
64.
Mr Kekalainen, please stand:
1.
I cancel the Good Behaviour Order made on 11 November 2015.
2.
I note that on 29 April 2014 you were convicted of culpable driving on 15 March
2013 causing death.
3.
I sentence you to three years and four months imprisonment to commence on
1 September 2015, to take account of pre-sentence custody. Had you not
pleaded guilty, I would have sentenced you to five years imprisonment.
4.
The sentence be suspended on 24 October 2016 for 18 months.
5.
I require you to sign an undertaking to comply with the offender’s Good
Behaviour Obligations under the Crimes (Sentence Administration) Act 2005
(ACT) for a period of 18 months from 24 October 2016.
I certify that the sixty-four [64] numbered paragraphs
are a true copy of the Reasons for Judgment of his
Honour Acting Chief Justice Refshauge.
Associate:
Date: 10 October 2016
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