Kibblewhite v Buik

[2020] ACTSC 132

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kibblewhite v Buik

Citation:

[2020] ACTSC 132

Hearing Date:

12 May 2020

DecisionDate:

11 June 2020

Before:

Mossop J

Decision:

See [75]

Catchwords:

APPEAL – APPEAL FROM MAGISTRATES COURT – Appellant convicted of contravening family violence order – appellant self-represented at sentencing hearing – appellant suffers from anxiety and autistic spectrum disorder – whether magistrate failed to consider making a non-conviction order – her Honour did fail to do so – specific error – further evidence admitted on appeal – appellant resentenced without conviction

Legislation Cited:

Crimes Act 1900 (ACT), s 334

Crimes (Sentencing) Act 2005 (ACT), ss 17, 47
Family Violence Act 2016 (ACT), s 43(2)
Magistrates Court Act 1930 (ACT), s 214(3)(b)

Mental Health (Criminal Procedure) Act 1990 (NSW), s 32

Cases Cited:

Edwards v Marinus [2010] ACTSC 57

Eliasenv The Queen (1991) 53 A Crim R 391
Fallon v Baker [2018] ACTSC 319
Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1
Islam v Wasley [2014] ACTSC 127
IT v Knight [2020] ACTSC 101
Munro v The Queen [2006] NSWCCA 350
R v Jones [2020] ACTSC 92
R v Olbrich [1999] HCA 54; 199 CLR 270
Saga v Reid [2010] ACTSC 59
SE v Ruhen [2019] ACTSC 190

Subasic v Williams [2018] ACTSC 207; 85 MVR 209

Parties:

Adam Kibblewhite (Appellant)

Christopher Buik (Respondent)

Representation:

Counsel

K Archer (Appellant)

M Dyason (Respondent)

Solicitors

Tu’ulakitau McGuire (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 60 of 2019

Decision under appeal: 

Court:  Magistrates Court of the ACT

Before:  Magistrate Boss

Date of Decision:          13 September 2019

Case Title:  Buik v Kibblewhite

Court File Number:      CC 2443 of 2019

MOSSOP J:

Introduction

1. On 13 September 2019 a magistrate convicted the appellant of a single count of contravening a family violence order. This was an offence against s 43(2) of the Family Violence Act 2016 (ACT). The maximum penalty for this offence is five years’ imprisonment, 500 penalty units or both. In addition to recording a conviction, the magistrate required the offender to enter into a good behaviour order for 12 months.

Grounds of appeal

1. The grounds of appeal set out in the Amended Notice of Appeal are:

(a)The Appellant was denied procedural fairness in not being granted an adjournment by the Learned Magistrate;

(b)Her Honour failed to consider whether the making of [a] non-conviction order was appropriate in the circumstances;

(c)Her Honour placed undue weight on the need for general and specific deterrence and denunciation in the sentencing of the appellant;

(d)The sentence imposed by Her Honour was manifestly excessive.

Further evidence

1. At the hearing of the appeal further evidence was admitted by consent, pursuant to s 214(3)(b) of the Magistrates Court Act 1930 (ACT). That evidence was the report of Dr Furst, a forensic psychiatrist, which except for question and answer 14 was admitted and became Exhibit 1.

1. At the hearing of the appeal there was some difference between the parties as to…