[2015] ACTSC 369

1. The conviction of Mark Kekalainen for the offence of culpable driving on 16 March 2013, causing the death of Lorna Anne Cumming be confirmed.

2. Mark Kekalainen be re-sentenced under s 82A of the Crimes (Sentence Administration) Act 2005 as follows:

(i) Mark Kekalainen be sentenced to three years and four months imprisonment to commence on 1 October 2014, to take into account pre-sentence custody.

(ii) The sentence be suspended today for 27 months and one week.

(iii) Mark Kekalainen be required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 28 months with the following conditions:

(a) a probation condition that he be under the supervision of the director general or her delegate and obey all reasonable directions of the person supervising him for two years or such lesser period as the person supervising him considers appropriate.

(b) a community service work condition that within two years from today he undertake 250 hours of community service work.

(c) he is disqualified from holding or obtaining a licence for two years from today.

(d) he attend at ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4.00 pm tomorrow, 12 November 2015.

CRIMINAL LAW - Jurisdiction, practice and procedure - judgment and punishment - re-sentence - culpable driving - remittance from Sentencing Administration Board - periodic detention - directed not to perform periodic detention - alcohol abuse - periodic detention cancelled - mental health concerns - undergoing counselling - suspended sentence - Good Behaviour Order - community service work

Crimes (Sentence Administration) Act 2005 (ACT), ss 58, 70, 75, 75(5), 82A

Crimes (Sentencing) Act 2005 (ACT), s 29(1)(a)

R v Clune (No 2) [1975] VicRp 73; [1975] VR 737

R v Kekalainen [2014] ACTSC 132

R v Stares [2002] VSCA 70; (2002) 4 VR 314

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

1. On 15 March 2013, Mark Kekalainen was driving a motorcycle with a pillion passenger when he lost control of the motorcycle and crashed, killing the pillion passenger.

2. He was charged with culpable driving whilst he was under the influence of alcohol so as not to have a proper control of the motor vehicle and which caused the death of Lorna Anne Cumming, the pillion passenger.

3. He pleaded guilty to that charge and, on 29 April 2014, I sentenced him to imprisonment for three years and four months to be served, as to the first nine months, in full time custody and the next 12 months by periodic detention and the sentence was then to be suspended on 28 January 2016 with a Good Behaviour Order for two years. See R v Kekalainen [2014] ACTSC 132.

4. Mr Kekalainen struggled to comply with his periodic detention obligations.

5. He told me in evidence that it created considerable psychological distress for him. There was not a lot of activity during the detention periods and he ruminated on the death of his passenger who had been his partner for a period prior to the collision.

6. Since his release from full time custody, he has become employed as a casual formwork carpenter. He has an opportunity to obtain more permanent work with some greater responsibility.

7. On a number of occasions, Mr Kekalainen presented to the Periodic Detention Centre intoxicated and was, as a result, directed under the s 58 of the Crimes (Sentence Administration) Act 2005 (ACT) not to perform periodic detention.

8. On 25 August 2015, the Sentence Administration Board conducted an inquiry into Mr Kekalainen's performance for periodic detention. It concluded that because of his alcohol abuse, he was unlikely to be able to complete the balance of his periodic detention. He had, at that time, 19 periods left to serve.

9. As a result, the Board referred Mr Kekalainen back to me, as the sentencing judge, under s 75 of the Crimes (Sentence Administration) Act. This permitted me, under s 82A of that Act, either to cancel his periodic detention, which would require him to serve the balance of the period in full time custody, or to re-sentence him.

10. One of the problems confronting me is that, on 9 September 2015, Mr Kekalainen was convicted of being a first offender driving whilst disqualified. He was convicted and fined $700 with a further concurrent disqualification from holding or obtaining a driver licence.

11. Ordinarily, under s 70 of the Crimes (Sentence Administration) Act, the conviction of such a person who is serving periodic detention means that the person's periodic detention is automatically cancelled and he is required to serve the balance of his periodic detention in full time custody.

12. I formed the view that, upon the Board referring the matter to me under s 75 of the Crimes (Sentence Administration) Act, the period detention was no longer under the jurisdiction of the Board and that s 70 did not apply. I did not hear full argument and so my view is entirely preliminary and provisional.

13. Accordingly, however, I proceeded to hear submissions on resentencing. Mr Kekalainen gave evidence before me. He is now 46 years old. He is clearly still grieving over the death of his former partner and continues to feel the guilt of having caused her death.

14. He managed to serve the period of full-time custody partly because he entered a kind of suspension of feeling. He has spent the last three months in the transitional release centre working for ACT Forests during the week.

15. He has two children who are dependent on him, though they were able to live with their mother, from whom Mr Kekalainen is separated, while he was in prison.

16. After release from prison, he managed to obtain employment in about three weeks. His employer requires him to work Monday to Friday between 7.00 am and 3.30 pm. He is also required to work on Saturdays, the same hours.

17. The fact that he is disqualified from holding or obtaining a driver licence is clearly a serious problem for his employer and for him for it requires him to find his own transport to get himself and his tools to work every day and, on occasion, to attend at several different job sites during the day. It also causes some challenges when he is required to work extra hours.

18. As noted above (at [6]), he may be able to commence a new job shortly where his employer is building on a school site and he would be site manager or senior foreman. It is a role he had previously performed.

19. His explanation for driving whilst disqualified was with some complications. He was required to work late on a Friday afternoon and considered that he would be late for attendance at the Periodic Detention Centre. As a result, he got into his son's car. His son was unfortunately away that weekend. He drove to the Centre and performed his periodic detention, apparently satisfactorily.

20. His son was still away on Sunday and so he drove home and it was when he was doing so that he was stopped by police and charged. He pleaded guilty on the second appearance at court and the sentence imposed suggests that the explanation he offered was accepted and somewhat mitigatory of the offence.

21. An email from ACT Corrective Services stated that Mr Kekalainen was referred to the Smart Recovery Alcohol and Drug Group course in May 2014 but stated that he did not have issues with alcohol and other drugs and so would not participate.

22. When asked in evidence before me about the email, he said he could not recall any such conversation. Of course, he has had no access to alcohol while in full time custody. Since his release from full time custody, however, he has struggled with some mental health issues. He was referred to Dr Rebecca Jackson, psychologist, for treatment and counselling. This appears to have been beneficial for him. He has now completed five therapy sessions.

23. He identified a number of challenges for him serving periodic detention. He worked hard, up to nine to 10 hours per day, which puts him under stress. This was exacerbated when he faced the prospect of periodic detention and led to him not sleeping. He has, and is clear, resorted to alcohol to help calm himself and this has enabled him to manage the periodic detention. However, it is clear that at times he has drunk too much and so has been directed not to perform period detention.

24. He acknowledged one disciplinary matter while serving periodic detention, when he remonstrated at what he considered, from his experience in the construction industry, as inappropriate personal protection equipment that was issued to detainees.

25. His rather inappropriate manner of making what otherwise would appear to be a reasonable point led to him being disciplined.

26. He acknowledged that he was aware of his obligations under the periodic detention order, especially as to the absence of alcohol when he presented for periodic detention. He accepted too that he had been warned a number of times but breached further.

27. I had a character reference from a man for whom he had built a home in about 2007 to 2008. During the construction period they became friends.

28. The referee referred to a period during the construction when numerous decisions had to be made but when the referee's son had committed suicide and he described the efforts that Mr Kekalainen had made to ensure that the difficult time went as smoothly as possible. He said this epitomised Mr Kekalainen's character where he cares more deeply for others than for himself.

29. He confirmed that Mr Kekalainen was working hard, especially to provide a good home for his children and to get his life back in order. He confirmed that full time custody would have a severely disruptive effect on Mr Kekalainen's two children. He commended Mr Kekalainen for gaining assistance from Dr Jackson.

30. A short letter from Mr Kekalainen's general practitioner shows that he has been diagnosed with depression for which he has been prescribed medication.

31. Dr Jackson provided a comprehensive and helpful report on her treatment and assessment of Mr Kekalainen. She is clearly a qualified and experienced psychologist. Indeed, she has worked in the prison system in the past. Dr Jackson does describe Mr Kekalainen's current symptoms to include nightmares and flashbacks of the collision, symptoms of de-personalisation, intrusive thoughts and images of the collision, avoidance of triggers, disturbed sleep, loss of appetite, hyper-vigilance, avoidance behaviour, low selfesteem, feelings of worthlessness, feelings of hopelessness, loss of enjoyment and ability to relax. Until his treatment, these symptoms had tended to worsen.

32. Mr Kekalainen also reported strong suicidal ideation, though with no active or current plans or attempts. The important protections for him include his full time employment, his relationship with his children and his support network of friends.

33. Dr Jackson reported that Mr Kekalainen had no problems with illicit drugs but that alcohol was an issue. He uses it to self-medicate. It had been a problem before he committed the offence. Treatment has focussed primarily on cognitive behavioural therapy supported by acceptance and commitment therapy and supportive counselling.

34. A strong emphasis has been placed on managing his alcohol consumption. Mr Kekalainen has showed some signs of symptom reduction and response to treatment. Dr Jackson reported, in relation to periodic detention:

Mr Kekalainen reports that he experiences extreme anxiety while in Periodic Detention (detention), has nightmares, flashbacks and intrusive thoughts which all increase in the lead up to Friday detention and then abate for a couple of days after he returns home before increasing again in the 48 hours before entering detention again.

He also reports insomnia while in detention. Despite attempts to give Mr Kekalainen strategies to manage his anxiety and trauma symptoms while in detention, he has found little improvement to date. He also described the strategies he used to manage while incarcerated at the AMC having been insufficient to assist him during periodic detention because he has the added pressure of managing full time work during the week, parenting his teenage children who are in his full time care and managing the family home. He therefore finds these additional stresses, in combination with his mental health concerns, make the weekend detention unmanageable. His explanation for using alcohol prior to detention has been to try and reduce his anxiety and agitation before Friday but this has led to additional legal issues.

My observations have been consistent with Mr Kekalainen's self-report of the above weekly pattern in symptoms. I have also observed a marked decrease in his anxiety and physical signs of agitation and depression since he has ceased detention in the past three weekends. He himself reports feeling less anxious, having improved sleep, improved concentration and memory at work and less suicidal ideation.

It is likely that once these matters are finalised and the outcome of his sentencing is known, psychological therapy targetting symptoms of trauma and anxiety will be more effective. I also anticipate that the reduction in depression and suicidal thinking have been assisted by a break in detention requirements and would expect that if the outcome of sentencing results in further detention that his depression would relapse and his trauma systems worsen.

Mr Kekalainen is an intelligent and motivated man who has demonstrated the ability to apply psychological coping strategies to manage his symptoms when at home. He appears to have a loving and supporting relationship with his children, a supporting employer, caring extended family and a stable home environment. It is my impression that he has a significantly improved prognosis of overcoming his psychological issues if he is supported in the community.

In summary, periodic detention or further incarceration would exacerbate his symptoms, interrupt the effectiveness of psychological therapy, jeopardise his full time employment, interfere with the relationship with his children and therefore increase his risk profile.

36. Dr Jackson recommends a community based order which would provide a positive outcome. This provides a significant challenge for a sentencer.

37. There is no doubt that the occurrence of a significant change in relevant circumstances during a period of sentence can legitimately alter the disposition. Indeed, that must be the rationale behind s 75(5) of the Crimes (Sentence Administration) Act, which, I note, expressly refers to an offender's health. It appears to me that Mr Kekalainen has made positive strides towards his rehabilitation. The factors mentioned by Dr Jackson are significantly relevant as protective factors towards ensuring that there is no re-offending. Accordingly, I do not consider that it is appropriate to require Mr Kekalainen to serve the remainder of his periodic detention period in full time custody.

38. I consider that I should re-sentence Mr Kekalainen. That requires me to consider the matters I need to consider as if sentencing for the first time. In order to do so, I have regard to the facts and seriousness of the offences as I have described it in The Queen v Kekalainen at [3]-[8], [21]-[24].

39. I have also have regard to Mr Kekalainen's subjective circumstances as I set them out in R v Kekalainen at [9]-[18] and to what I have set out in these remarks. I have regard too to the Victim Impact Statements which I have re-read.

40. I note current sentencing practice, as outlined in R v Kekalainen at [25]-[30].

41. It seems to me, too, that there is a requirement to have regard to what I now know of Mr Kekalainen's mental health. In particular, I note, as in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32], it is relevant to have regard to a mental condition that affects the sentence. Thus, the court identified two matters which seem to me to be appropriate, namely two ways in which impaired mental functioning is relevant to sentencing.

(5) the existence of the condition at the date of sentencing or its foreseeable recurrence which may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health;

(6) where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.

43. In this regard, I note that Mr Kekalainen has completed 19 periods of periodic detention, as well as the period of full time custody to which I sentenced him.

44. I note that, at the time of sentence, he was assessed as suitable not only to serve a term of imprisonment by periodic detention, but also a community service work condition to a Good Behaviour Order.

45. That assessment may be out of date and so I had a further assessment undertaken and I note that he remains suitable to perform community service work as a condition to a Good Behaviour Order.

46. I note, too, that a combination sentence is no longer available where a period of full time imprisonment is imposed in combination with a periodic detention order. See s 29(1)(a) of the Crimes (Sentencing) Act 2005 (ACT).

47. Thus, in resentencing Mr Kekalainen, I must take into account the periods of sentence, but I cannot impose the same sentence, doing that will result in a sentence that appears to be below that which is appropriate for the offence and Mr Kekalainen's circumstances.

48. In my view, so long as it is clear that, in order to address the culpability of Mr Kekalainen, I have had regard to, and take into account, the prior custodial portions of the sentence, including the periodic detention which he has already served, it seems to me I am meeting the obligations. To do this, however, I may reduce the sentence to be imposed. See R v Stares [2002] VSCA 70; (2002) 4 VR 314 at 322-3; [25], and R v Clune (No 2) [1975] VicRp 73; [1975] VR 737 at 738.

1. I confirm the conviction for the offence of culpable driving on 16 March 2013, causing the death of Lorna Anne Cumming.

2. I re-sentence you under s 82A of the Crimes (Sentence Administration) Act 2005 as follows:

(i) I sentence to you to three years and four months imprisonment to commence on 1 October 2014, to take into account pre-sentence custody.

(ii) I suspend the sentence today for 27 months and one week.

(iii) I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a period of 28 months with the following conditions:

(a) a probation condition that you be under the supervision of the director general or her delegate and obey all reasonable directions of the person supervising you for two years or such lesser period as the person supervising you considers appropriate.

(b) a community service work condition that within two years from today you undertake 250 hours of community service work.

(c) I disqualify you from holding or obtaining a licence for two years from today.

(d) I direct that you attend at ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4.00 pm tomorrow.

[His Honour then spoke directly to Mr Kekalainen]

50. Mr Kekalainen, I am not sure whether you understand the sentence, that is a lot of legal formality, but what I have done is I have imposed the same sentence but I have backdated it to take into account the full time period and the period of periodic detention.

51. That is a bit complicated. I have then suspended the sentence today. The periodic detention has gone. I have replaced that with 250 hours of community service work. That is going to be a challenge for you because you have only got Sundays on which to do it. You can do it on Sundays but that means working seven days a week, but this was a serious offence, as you understand, and you are aware of that, but the community is entitled to recognise that in its own particular way.

52. You are under supervision now. That was not part of the earlier order. Part of that is because of the community service condition, but it is also the opportunity for you to have someone that you can turn to if things get really tough and they can help you find a way through that. You have got Dr Jackson and that is going really well and I am very impressed with her and what she is doing with you and I hope you continue that to the extent of your capacity to do so and the extent of your need to do so.

53. The 250 hours is to be performed over two years. That is more than is normally granted but I am aware that Sunday community service work may be ending and therefore there may be some juggling and you may simply have to take leave. That is a matter that you have got to work out for yourself.

54. I think that you really need to address your alcohol. If you are caught committing any further offences then there is a realistic possibility that you will go to gaol and, at the end of the day, full time gaol will not be good for your mental health but that is the way it goes and there are mental health people there who can assist you.

I certify that the fifty-four [54] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.