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Kilby v Carey

Kilby v Carey

Case [2023] ACTSC 119 24 May 2023

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kilby v Carey
Citation:	[2023] ACTSC 119
Hearing Date:	24 May 2023
DecisionDate:	24 May 2023
Before:	Mossop J
Decision:	1. The appeal is dismissed.
Catchwords:	APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from sentence – allegation of manifest excess and error in consideration of totality principle – offences of assault occasioning actual bodily harm and choking – appeal dismissed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 34B Crimes Act 1900 (ACT), ss 24, 28(2)(a) Family Violence Act 2016 (ACT)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 House v The King (1935) 55 CLR 499 Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Melham v The Queen [2011] NSWCCA 121 O'Brien v The Queen [2015] ACTCA 47 Pearce v The Queen [1998] HCA 57; 194 CLR 610 The Queen v Abbott [2007] VSCA 32; 170 A Crim R 306
Parties:	Michael Kilby ( Appellant) Madison Rae Carey ( Respondent)
Representation:	Counsel P Bevan ( Appellant) K McCann ( Respondent)
Solicitors Bevan & Co Lawyers & Conveyancers ( Appellant) Director of Public Prosecutions ( Respondent)
File Number:	SCA 13 of 2023
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Lawton Date of Decision: 13 December 2022 and 6 March 2023 Case Title: Carey v Kilby Court File Numbers: CC2019/8382, CC2021/10664, CC2021/10665, CC2022/6556, CC2022/6558, CC2022/6559, CC2022/6561, CC2022/6562

MOSSOP J:

Introduction

Mr Michael Kilby has appealed against sentences imposed by a magistrate on 6 March 2023. His appeal was initially against both conviction and sentence but at the hearing of the appeal, counsel for the appellant filed an Amended Notice of Appeal which confined the appeal to an appeal against sentence.

Sentences imposed

The appellant was found guilty on five charges which involved family violence offences. Two of those charges related to an incident on 27 March 2022 and three of them arose from an incident on 6 July 2022. The charges involved contraventions of ss 24 and 28(2)(a) of the Crimes Act 1900 (ACT). Section 24 is the offence of assault occasioning actual bodily harm which carries a maximum penalty of five years’ imprisonment. Section 28(2)(a) is the charge of intentionally and unlawfully choking, suffocating or strangling a person and carries a maximum penalty of five years’ imprisonment. The sentences imposed by the magistrate were as follows:

Charge number

Offence

Date

Sentence

CC2022/6559

Assault occasioning actual bodily harm (Crimes Act 1900 (ACT), s 24)

27 March 2022

18 months (6 July 2022 to 5 January 2024)

CC2022/6561

Unlawful choking (Crimes Act 1900 (ACT), s 28(2)(a))

27 March 2022

Two years (6 July 2022 to 5 July 2024)

CC2022/6556

Assault occasioning actual bodily harm (Crimes Act 1900 (ACT), s 24)

6 July 2022

Two years and six months (6 July 2024 to 5 January 2027)

CC2022/6558

Assault occasioning actual bodily harm (Crimes Act 1900 (ACT), s 24)

6 July 2022

12…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kilby v Carey

Details

AGLC: Kilby v Carey [2023] ACTSC 119
Case: [2023] ACTSC 119
Decision Date

CaseChat Overview and Summary

In the matter of Michael Kilby, the appellant, versus Madison Rae Carey, the respondent, the Supreme Court of the Australian Capital Territory was tasked with reviewing the sentences imposed on the appellant for multiple family violence offences. The appellant had been found guilty of several charges involving assault occasioning actual bodily harm and unlawful choking, stemming from two separate incidents. The sentences imposed were a total of four years and six months, with a non-parole period of two years. The appellant's appeal against the sentence was centred on two grounds: that the sentences were manifestly excessive and that the magistrate had erred in considering the principle of totality.

The court examined whether the magistrate had failed to apply the principle of totality correctly, a principle which requires the court to review the aggregate sentence and ensure it reflects the total criminality of the offending. The magistrate's approach to concurrency demonstrated that he had given due consideration to the principle of totality. The court noted that the magistrate's decision to make sentences wholly concurrent for offences on the same day, but not for offences on different days, was a legitimate approach within the scope of the sentencing discretion.

Regarding the claim of manifest excess, the court considered whether the aggregate sentence was unreasonable or plainly unjust. The court noted that the appellant had not provided a comparative analysis to substantiate the claim of manifest excess. The court examined the objective circumstances, including the severity and frequency of the offending, the appellant's criminal history, and the considerations under the Bugmy principle, which pointed in both directions of mitigation and the need for community protection. The court concluded that the aggregate sentence was within the scope of the magistrate's discretion and did not find it to be manifestly excessive.

The court dismissed the appeal and upheld the sentences imposed by the magistrate, finding no error in the application of the principle of totality or in the length of the aggregate sentence. The order of the court was that the appeal be dismissed.

Orders