Grace Millane’s Tinder date killer has appealed his sentence claiming it is too harsh because the judge focused too much on him photographing her body and watching pornography.
Jesse Kempson, 28, was found guilty of strangling the 21-year-old British backpacker in his New Zealand hotel room on December 1, 2018, and burying her body in a suitcase.
After Ms Millane, from Wickford, Essex, was murdered, Kempson took photos of her body and watched hours of hardcore pornography as she lay dead nearby, his trial was told.
In February, Kempson was jailed for at least 17 years after jurors in Auckland rejected his claim that he had accidentally killed Ms Millane during “rough sex”, and he is now appealing his conviction and life sentence saying they were unjust.
As part of the appeal, Kempson’s lawyer, Rachael Reed has argued her client’s “abhorrent” treatment of Ms Millane’s body did not mean he was “callous” when he killed her, and his non-parole period should be reduced to 12 years.
She said he acted inexcusably after the death, but the trial was flawed.
Ms Reed told the Court of Appeal in Auckland: “I do not in any way seek to condone or excuse his actions after Ms Millane’s death.
“I cannot and will not do so – they are inexcusable. This appeal is about whether the trial process miscarried.”
Kempson looked on from his jail cell via video link while his family, including his dad, and police detectives watched the proceedings in the courtroom.
His legal team argues the jury was not given proper directions from the trial judge when it came to considering the issue of consent – nor were they equipped to properly analyse expert evidence, the New Zealand Herald reported.
Errors that were made by the judge made the sentence too harsh and unjust, his lawyers claim.
Ms Reed told the court: “Whether the [killer] continued to have an honest belief in consent… The jury were not able to engage in it on the question trail.”
Had the jurors considered it, they may not have agreed the killer carried out the “reckless violence” needed to reach the threshold for a murder conviction, it was reported.
Ms Reed also argued her client didn’t plan to kill Ms Millane, saying he didn’t have enough time to “form a reckless intent” between putting his hands around her neck and her dying, especially if he honestly believed she had consented to the act.
She said her client suffered no defensive injuries, claiming this implied Ms Millane did not fight back and consented to being choked.
The defence lawyer also claimed Ms Millane had consented to the rough sex and therefore she was not vulnerable.
Ms Reed said the sentence was unjust when the murder alone was considered, and there was no evidence excessive violence was used against Ms Millane.
She suggested the jury – “ordinary members of the public” – was not given an opportunity to adequately consider Kempson’s state of mind or the “conscious appreciation” of the situation Ms Millane was in.
She said: “The post-death conduct is certainly at times abhorrent. What we do need to look at though is what connection that has to the state of mind he had at the time of the murder.”
Ms Reed said none of her client’s “distasteful” actions had any bearing on the level of callousness present when he killed Ms Millane.
She claimed Kempson may have been so horrified after Ms Millane died that he used the pornography to distract himself.
She argued the jurors were not given the appropriate direction when it came to what they needed to look at and consider regarding expert evidence.
Kempson was unanimously convicted of murder, but he continues to insist he is innocent.
Prosecutors have rejected the basis of his appeal and said the sentence handed down by the trial judge was not excessive.
The appeal court judges’ decision will be announced at a later date.
Ms Millane met her killer on Tinder, and they went out for drinks at Auckland baras the night before her 22nd birthday.
CCTV showed her and Kempson returning to his hotel room in the city centre, and she was never seen alive again.
Her body was later found stuffed inside a suitcase that was buried in a shallow grave in a forested area in the Waitakere Range, just outside the city.
When Kempson was sentenced in February, Justice Simon Moore told him his actions amounted to “conduct that underscores a lack of empathy and sense of self-entitlement and objectification”.
He told the court the attack was not pre-meditated or driven by rage, but Ms Millane was a vulnerable woman.
The judge blasted Kempson as “depraved” for taking photos of his victim’s body, saying his actions showed a “lack of empathy”.
The sentencing judge said: “You are a large and powerful man, she was diminutive. You were in a position of total physical dominance. She trusted you.
“You didn’t ring an ambulance, or call the police, instead you embarked on a well-planned and sustained and coordinated course of action to conceal any evidence of what had occurred in your room.”
During the sentencing hearing, Gillian Millane, the victim’s mum, read out a victim impact statement via video link describing how her family members’ lives have been shattered.
Mrs Millane told the court: “The tears I shed are never-ending, at the thought of never having the chance to be able to kiss my darling Grace goodbye. Grace was never just a daughter, she was my friend, my very best friend.
“I torment myself over what you did to my Grace, the terror and pain she must have experienced at your hands. As a mother I would have done anything to change places with her.
“I should have been there, but she died terrified and alone in a room with you.”