STATE OF TASMANIA v PAUL LESLIE KEMP 19 FEBRUARY 2025
STATE OF TASMANIA v CAMERON LAWRENCE WELLER
COMMENTS ON PASSING SENTENCE JAGO J
Mr Kemp, a jury found you guilty of two counts of Criminal Code assault. They found you not guilty of the crime of aggravated burglary. Mr Weller, a jury found you guilty of the crimes of aggravated burglary and Criminal Code assault. Additionally, you pleaded guilty to one count of Criminal Code assault.
It is, of course, my responsibility to make findings of fact consistent with the jury verdict for sentencing purposes, but in this case, I am of the view, given the combination of jury verdicts returned, the facts substantially follow from those verdicts. To convict, the jury must have largely accepted the evidence of the complainant (supported to a limited extent by the evidence of his father, Mr Leonard Street). Equally, the jury must have rejected the respective accounts you each gave in evidence. I am also satisfied the facts of the incident are largely as the complainant described. It nevertheless remains necessary to determine the basis of criminal responsibility in respect to some of the charges.
All these crimes arise from an incident that occurred on 14 March 2022. On that evening, Mr Weller travelled to the home of Garry Street. Mr Street was known to Mr Weller. He had met him as Mr Street worked with Ms Whelan, who was Mr Weller’s long-term partner. Both Ms Whelan and Mr Street worked at a business owned and operated by Mr Kemp. Ms Whelan is also the stepdaughter of Mr Kemp. Mr Weller had received information to suggest Mr Street and Ms Whelan were having an affair and that Mr Street was providing her with drugs. Whilst I do not consider the evidence on the trial established either of those matters, I accept Mr Weller believed that to be the case. The relationship between Mr Weller and Ms Whelan had been long-standing, and although in the lead-up to these crimes, there had been some difficulties within the relationship leading to a brief period of separation, I accept Mr Weller remained committed to the relationship and cared about Ms Whelan’s well-being. He was obviously concerned and upset by the information he had received.
He parked his vehicle on the street, along from Mr Street’s home. He then proceeded to walk down the driveway of a neighbouring property. At that point, he believed he observed Mr Street and Ms Whelan in a courtyard area, consuming drugs. Shortly thereafter, he observed Mr Street and Ms Whelan walk to her car, and exchange a hug and kiss, and she then departed.
Observing this behaviour caused Mr Weller considerable upset. He contacted the mother of April Whelan, Mrs Rose Kemp, Mr Kemp’s wife. He reported via telephone conversation what he had seen. He was in a distraught state as he reported it. Mr Kemp heard the conversation and indicated he would travel to Wynyard to meet Mr Weller. Mr Weller also contacted his father and told him about his observations. Mr Stuart Weller also travelled to Wynyard to join his son.
I am satisfied that when Mr Kemp arrived in Wynyard, he found a very distraught Mr Weller. Seeing Mr Weller like this would undoubtedly have been upsetting for Mr Kemp as he considered Mr Weller to be family. I am also satisfied at this point, and despite Mr Kemp’s claims that he was not angry or frustrated with Mr Street, that he in fact was. Mr Street was a long-term and trusted employee of Mr Kemp’s. Mr Kemp had warned Mr Street about his involvement with April Whelan and drugs. His pleas had seemingly been ignored. I have no hesitation in concluding that by this point Mr Kemp was angry and there was a discussion between he and Mr Weller about confronting Mr Street. I am satisfied that, given the subject matter and emotional nature of the confrontation, both men appreciated that the confrontation was likely to become heated and physical.
Mr Kemp and Mr Weller walked down the driveway and through a gate to gain access to Mr Street’s property. They were followed by Mr Stuart Weller. Whilst Mr Stuart Weller was not involved in any direct confrontation with Mr Street, I am satisfied that he was, as he described to Police, there to provide support and “back up” to Mr Kemp and Mr Cameron Weller should matters escalate out of control. The presence of Mr Stuart Weller as “backup” is strong evidence both defendants appreciated the confrontation was likely to be physical.
I am satisfied that by the time Mr Kemp knocked on the sliding glass door to Mr Street’s bedroom, he was armed with a piece of wood. I am unable to determine from where that piece of wood came, although I suspect it was most likely from the work van in which Mr Kemp had travelled to Wynyard. He used it knock hard on the glass sliding door.
Mr Street was in his bedroom. He described the banging on the door as sufficiently hard that he feared if he did not open it, it would be smashed. That is consistent with a piece of wood being used to bang on the glass door. He turned the light on in the room and opened the curtains. He observed Mr Kemp and Mr Weller standing there. Mr Kemp said, “open the door you cunt”. Mr Street did so. I am satisfied Mr Kemp stepped immediately into the room and told him that he had been “warned to stay away from April”.
In my assessment, the description given by Mr Street as to how Mr Kemp came to enter his bedroom, may well have left the jury with a reasonable doubt as to whether Mr Kemp knew that he had no permission to enter Mr Street’s bedroom. Mr Street and Mr Kemp were well known to each other. Mr Street knew it was Mr Kemp and Mr Weller outside of the door before he opened it. The acquittal in respect to the aggravated burglary charge is consistent with the jury being unable to exclude, as a reasonable possibility, that Mr Kemp considered the opening of the door was indicative of a permission to enter. I will sentence on this basis.
Immediately upon entering the room, Mr Kemp used the piece of wood that was in his hand to push Mr Street to the chest. This forced him back onto his bed, which was positioned a short distance inside the sliding doors. Mr Kemp then held the piece of wood against Mr Street’s upper chest and throat area. The pressure to the neck caused Mr Street to have trouble breathing. Eventually, Mr Street was able to push the piece of wood away. It landed on the floor. Mr Kemp then put both of his hands around Mr Street’s neck and applied pressure. Again, the pressure to the neck area caused Mr Street to have trouble breathing. This behaviour grounds the first count of assault. On this count I sentence Mr Kemp as a principal offender.
Whilst Mr Kemp had Mr Street pinned to the bed, he asked Mr Weller whether he “wanted to have a go”. At that point, Mr Weller who was at the end of the bed, leant over and punched Mr Street to the face three times. It caused a laceration and bruising to Mr Street’s left eye, bruising to the left cheek and a laceration and bruising to the lower lip. This behaviour grounds the second count of assault, to which Mr Weller pleaded guilty.
Whilst Mr Weller was not involved in the initial assault on the bed, I am satisfied he attracts criminal responsibility because that assault was a probable consequence of a common purpose, he had entered into with Mr Kemp to confront and assault Mr Street. Similarly, whilst Mr Kemp did not deliver the blows which characterised the second count of assault, I sentence him on the basis he aided Mr Weller in the commission of that crime, as he held Mr Street on the bed whilst Mr Weller punched him. As to the crime of aggravated burglary, I am satisfied that Mr Weller entered the bedroom some time after Mr Kemp. By the time he entered Mr Kemp had already commenced inflicting violence upon Mr Street. Given that, and consistent with the jury verdict, I find at that point Mr Weller knew he had no right to enter and entered intending to assault Mr Street.
These crimes are very serious. They involved an entry of two assailants into Mr Street’s home, late at night, whilst armed with a weapon and violence was inflicted. The assaults occurred because both men felt aggrieved by Mr Street’s behaviour. Mr Weller believed that Mr Street had been behaving inappropriately with his estranged partner. Mr Kemp, as I have noted, was angry and felt betrayed because Mr Street was a long-term employee of his and had previously been warned about his behaviour as it related to Ms Whelan.
This was unjustified and unacceptable vigilante justice. I am satisfied each of you intended to cause fear and intimidation for Mr Street, and to convey to him in no uncertain terms, that you would not stand for his alleged behaviour. The immediacy of the attack upon Mr Street is indicative that your mindset from the beginning was to assault him. Given the heightened, emotional state each of you were in, it is fortunate that the injuries sustained by Mr Street were not more serious. Each of you had lost control to a degree and there was, in my assessment, a significant potential for more serious harm to be occasioned.
The assault inflicted whilst Mr Street was on the bed was a serious one. It involved pressure being applied to the throat, firstly by use of a weapon and then by use of hands. Mr Street was in a very vulnerable position, pinned to the bed and largely unable to defend himself. Whenever pressure is applied to the throat to the extent breathing is affected it is very easy for serious, often unexpected and unintended injury to be caused. Quite frankly, it is an inherently dangerous thing to do.
Mr Street has been badly affected by the assault. He experienced physical pain for some time after the incident. He has been left feeling upset, stressed and anxious. He has been reluctant to leave the house following the assault.
Mr Kemp is 56 years of age. He is in a stable, long-term relationship to which there are children and step-children. He operates two successful businesses, as well as operating a family farm. He is obviously an industrious individual. He has no relevant prior criminal history. I accept, save for this incident, he is a person of good character. It is troubling that he has shown no insight, nor acceptance of responsibility for his behaviour on this evening. Whilst I am satisfied that the incident occurred because of a combination of circumstances personal to him, namely the perceived betrayal of Mr Street in having a relationship with his step-daughter, April Whelan, and allegedly providing her with drugs, and the obvious upset it caused Cameron Weller, whom he saw as a son, his inability to recognise and acknowledge that what he did was completely unacceptable, and had the potential to escalate into an even worse situation, is concerning. Specific deterrence remains an important sentencing consideration.
Mr Weller is 29 years of age. He is self-employed as a builder and undertakes additional casual work for Mr Kemp’s labour hire company. Following the breakdown of his relationship with Ms Whelan, he resumed living with his parents. He has recently purchased a block of land, upon which he is intending to build a home. Mr Weller has no relevant prior criminal history. I accept that on this evening, he was highly emotional and upset by what he believed had been occurring between Mr Street and his then partner, Ms Whelan, but again, he has displayed a lack of insight into the severity of his behaviour. I acknowledge that he accepted some responsibility for the assault he perpetrated upon Mr Street, but in his evidence, endeavoured to downplay the seriousness of the situation.
Whilst I accept the behaviour of both Mr Kemp and Mr Weller was driven by emotion, the events could not be described as spontaneous. Mr Kemp drove some twenty minutes to reach Mr Weller. There was ample time to consider how best to deal with the situation. When he arrived and observed Mr Weller’s heightened emotional state, the sensible thing to do would have been to take him home and address Mr Street’s alleged poor behaviour the following day. The fact both defendant’s set upon a confrontation that evening is indicative that this was never intended to be a calm and sensible discussion. Both men were very clearly intent on conveying their displeasure to Mr Street. Their conduct was completely unjustifiable.
In my view, a term of imprisonment is necessary to mark the seriousness of the matter, but I take the view that the execution of the term of imprisonment can be suspended, given the defendants’ respective lack of relevant criminal history and my satisfaction that this behaviour is an aberration arising from a culmination of stressful and emotional circumstances.
Given the factual scenario, and the pathway to criminal responsibility for each defendant that I have identified, I see no legitimate basis to distinguish between the sentences imposed upon each defendant.
Mr Kemp, you are convicted of two counts of Criminal Code assault. Mr Weller, you are convicted of one count of aggravated burglary and two counts of Criminal Code assault. I impose one sentence in respect to each of you. You are each sentenced to ten months’ imprisonment. The whole of that sentence will be suspended for a period of two years on condition that you are not to commit another offence punishable by imprisonment during that time.
I warn each of you that the law is that upon breach of a condition of a suspended sentence being proved, a judge must activate it and make you serve it, unless it is unjust to do so. Therefore, if you wish to avoid serving the period of imprisonment I have just imposed, you must strictly comply with the terms of its suspension.