Kilby v Carey

[2023] ACTSC 119

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

1. 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

1. 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 months (6 July 2024 to 5 July 2025)
CC2022/6562	Unlawful choking (Crimes Act 1900 (ACT), s 28(2)(a))	6 July 2022	Two years (6 July 2024 to 5 July 2026)

1. As a result of his conviction for these offences the appellant was also in breach of previous suspended sentences of imprisonment. Each of these was imposed commencing on 6 July 2022 with the effect that they were wholly concurrent with the sentences arising out of the 27 March 2022 incident. Those sentences were:

(a)CC2019/8382 (assault occasioning actual bodily harm): two months and 29 days;

(b)CC2021/10664 (refused screening test): one month; and

(c)CC2021/10665 (drive while disqualified): one month.

1. The aggregate sentence was four years and six months. The non-parole period was a period of two years which equated to 44 percent of the aggregate sentence.

The grounds of appeal

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

(a)The sentences were manifestly excessive; and

(b)The learned magistrate erred in consideration of the totality principle.

The reasons of the magistrate

1. The magistrate had delivered reasons at the time that he found the appellant guilty of each of the offences. Those reasons involved acceptance of the complainant’s version of events and rejection of the appellant’s version of events. The facts recorded in the magistrate’s sentencing reasons provided a brief summary of the nature of the offending as follows:

The first in March involved the defendant punching the victim in the head whilst on a couch in a shed behind their house and then further assaults on her when she fell to the floor. She was choked and punched while curled up in a foetal position. Her head was struck against the concrete floor. Exhibit 1 in the matter is the set of photos the victim took of her injuries that she sustained.

The second event in July involved the defendant pushing the victim into the bath, dragging her out and then whilst she was on the ground, stomping on her lower back causing a fracture to her coccyx and later holding her against the bathroom wall and choking her, then later slapping her whilst she sat on the toilet.

1. The magistrate referred to the multiple injuries disclosed in a report from Dr Eldridge which disclosed multiple injuries sustained across a number of anatomical planes. He also had regard to the terms of a victim impact statement prepared by the complainant. His Honour noted that each of the offences warranted a sentence of imprisonment, that the appellant was not entitled to any discount for a plea of guilty or expression of remorse and that his criminal history was such that he cannot be granted leniency.

1. The magistrate made specific reference to the requirements of s 34B of the Crimes (Sentencing) Act 2005 (ACT) (CS Act) and set out the preamble to the Family Violence Act2016 (ACT) to which the court is obliged to have regard under s 34B(1)(a) of the CS Act. He referred to the fact that the offences occurred in the home of the victim: s 34B(1)(b), and that the appellant has been found previously to be guilty of serious family violence offences against a different partner: s 34B(1)(d). The magistrate set out the subjective circumstances of the offender as disclosed by the pre-sentence report. Those included circumstances indicating a disadvantaged upbringing and disconnection from Aboriginal culture.

1. The magistrate discussed the operation of the Bugmy principle (Bugmy v The Queen [2013] HCA 37; 249 CLR 571) and in particular, the fact that consideration of an offender’s background may moderate his moral culpability but also increase the need for community protection. So far as the latter issue was concerned, the magistrate said:

It seems to me the offender’s inability to control his violent response to frustration increases the importance of protecting the community from the violence he perpetrates upon his domestic partners.

1. Finally, he referred to the fact that he would impose a longer than usual period on parole so that the offender could be “supervised and assisted, hopefully, to address his propensity to violence”.

Consideration

1. The grounds of appeal are intertwined in that it is alleged that there is a failure to properly apply the totality principle and that as a consequence the aggregate sentence is manifestly excessive. For the reasons which follow, neither of these complaints are made out. Notwithstanding the intertwined nature of the grounds, it is convenient to give some separate consideration to each of the points.

Totality

1. The principles to be applied when sentencing an offender for multiple offences are summarised in O’Brien v The Queen [2015] ACTCA 47 at [26] as follows:

The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:

(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623–624.

(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.

(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].

(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

1. Questions of concurrency and accumulation are discretionary matters for the sentencing judge and, as a consequence, there are a variety of acceptable ways that the totality principle may be given effect in any particular case. In Le Clair v The Queen; Achanfuo‑Yeboah v The Queen [2017] ACTCA 19 at [56] the court said: “There is no single correct approach to the structuring of multiple sentences and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise …”

1. The magistrate did not make any express reference to the principle of totality in his sentencing reasons. Notwithstanding the failure to make any express reference to considerations of totality in his reasons, it is clear that the magistrate did have regard to the relevant principle. That is indicated by the approach that the magistrate took to concurrency of sentences. He made the two sentences imposed in relation to the 27 March 2022 incident wholly concurrent with each other. They were also wholly concurrent with each of the sentences imposed as a result of the imposition of the suspended sentences.

1. He also made the three sentences imposed as a result of the 6 July 2022 incident wholly concurrent with each other. The extent of concurrency can only be explained by considerations of totality. But for considerations of totality, a degree of cumulation would have been required as between the sentences for different offending occurring on the same day.

1. There was no concurrency as between the offending on the different dates. A proper basis for that approach was available, namely that they were separate incidents, substantially separated in time, even though they involved the same victim.

1. Having regard to the fact that questions of totality were plainly considered in the context of the offending on the particular days, the submission that no consideration was given to the issue of totality as between offending on different days is unrealistic. It is clear, in my view, that the magistrate did give consideration to the issue and this led to him structuring the sentences in a way that he did. Therefore, the contention that the magistrate failed to give consideration to the issue of totality cannot be accepted.

1. So far as the ultimate structure of the sentence is concerned, different approaches may legitimately be taken in relation to cumulation and concurrency so as to achieve an overall appropriate relationship between the sentences and the appropriate aggregate sentence. It is not appropriate to consider only one aspect of concurrency, namely concurrency as between different dates, without considering also the treatment of concurrency as between offences occurring on the same date. It is necessary to look at the structure of the sentence as a whole in order to determine whether there has been any error of approach in the application of the principle of totality.

1. In the present case, the magistrate has allowed complete concurrency between sentences for offending occurring on a single day and no concurrency as between sentences for offending on different days. Having regard to the circumstances of the offending, this is a legitimate approach to achieve an overall appropriate aggregate sentence. An alternative approach might have been to allow some cumulation between sentences arising from offences on a single day but then introducing some concurrency as between sentences occurring on different days, in order to achieve an overall appropriate aggregate sentence. Both courses are ones which are available within the scope of the sentencing discretion available to the magistrate. It cannot be said that the approach taken by the magistrate involves any error in the exercise of the discretion in relation to structuring the sentences imposed.

1. For these reasons the appellant has not established that the issue of totality was not considered by the magistrate and has not established any error relating to the concurrency or cumulation of the sentences in the light of the applicable principles.

Manifest excess

1. The principles to be applied in relation to a claim, in a sentence appeal, of manifest excess are well-established. They were summarised in O’Brienv The Queen at [25] as follows:

(a)Manifest excess is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321 (Dinsdale).

(b)The relevant test is whether the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499; Dinsdale at [6]; Melham v The Queen [2011] NSWCCA 121 (Melham). A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long is a sentence which is erroneous in point of principle because it has not been imposed according to the rules of reason and justice: Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 at [61].

(c)In approaching the question of whether a sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Melham at [85].

(d)It is not enough that the members of the appeal court would have imposed a different sentence: Markarian v The Queen (2005) 228 CLR 357 at [28]; R v Abbott (2007) 170 A Crim R 306 at [14]; Balthazaar v The Queen [2012] ACTCA 26 at [61].

1. In the present case, there was no challenge to the length of the individual sentences. The appellant claims however that the total sentence was manifestly excessive.

1. The submission as to the length of the aggregate sentence was not developed by reference to any cases which would demonstrate a pattern of sentencing inconsistent with that adopted by the magistrate. Nor were any submissions directed to any particular objective or subjective circumstances which would demonstrate the excessive nature of the aggregate sentence.

1. In assessing the submission that the aggregate sentence imposed was manifestly excessive, it is relevant take into account the following circumstances:

(a)The relevant maximum penalty for each of the offences was five years’ imprisonment.

(b)The objective circumstances included the following:

(i)The appellant and the complainant had been in an on-again off-again relationship for approximately seven years and had one daughter together who was six years old.

(ii)Both series of offences took place on the property where the couple resided together.

(iii)The assault occasioning actual bodily harm (CC2022/6559) occurred on 27 March 2022 when the appellant was angry with the complainant because she was using a mobile phone. It involved the appellant punching her in the head and jumping on top of her. It also included the complainant’s head being bashed on the concrete after the choking. The assault involved bruising to her eye, face, left arm and right leg.

(iv)The choking charge (CC2022/6561) on 27 March 2022 occurred during the same incident and involved the appellant choking the complainant while he was on top of her on the couch and after she had fallen on the concrete floor. She described the pressure on her neck as “eight out of ten” and felt like she could not breathe. Both hands were used to choke her.

(v)The July assault occasioning actual bodily harm (CC2022/6558) occurred after the complainant had locked the appellant out of the front door of the house because he had been screaming abuse at her as he searched for a cigarette lighter and slamming her car door. A panel of glass near the front door was broken and this allowed the appellant to enter the house and walk down the hallway. As the complainant was walking out of the bathroom the appellant threw her into the bathroom, causing her to fall into the bathtub. The appellant then attacked the complainant. She described being in a foetal position in the bathtub. He kicked her body three or four times. She described thinking that she was going to die. He grabbed her hair and then used that to bang her head against the side of the bath of multiple times. The appellant then dragged the complainant out of the bathtub and “booted” or “stomped” on her tailbone. She was subsequently found to have a non-displaced fracture of her coccyx.

(vi)The choking charge (CC2022/6562) arose because he then strangled her using two hands around her neck while pushing her body against the towel rack.

(vii)The second assault occasioning actual bodily harm during the July incident (CC2022/6558) occurred because the complainant then started having an asthma attack and was allowed to go to the toilet. The appellant hit her with an open hand across the face causing a bruise.

(c)The personal circumstances of the offender gave rise to Bugmy considerations which were considered, correctly, by his Honour to point in both directions, that is, as matters of mitigation as well as matters increasing the need for protection of the community.

(d)The appellant had a criminal history which included multiple previous convictions for assault occasioning actual bodily harm, damaging property, common assault and various driving offences. In 2019 he was given a suspended sentence of six months’ imprisonment for assault occasioning actual bodily harm on a former partner. In 2015 he committed offences of assault occasioning actual bodily harm against his former partner and his mother and was given a six-month suspended sentence of imprisonment for that offending in 2016.

(e)Although not referred to in the magistrate’s reasons, the offending in July occurred when their child and a nephew was in the house, and their daughter was aware of the conflict occurring.

1. Having regard to the objective and subjective circumstances outlined, it cannot be said that the aggregate sentence of four years and six months was manifestly excessive. Rather, it is an aggregate sentence which is within the scope of the magistrate’s discretion having regard, in particular, to the nature of the offending, the offender’s prior history of offending and the fact that Bugmy considerations pointed in both directions. That conclusion is reinforced when regard is had to the matters required to be considered under s 34B of the CS Act. The allegation of manifest excess is not made out.

Order

1. The order of the Court is:

1.     The appeal is dismissed.

I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: