Kilby v The King - [2023] NSWCCA 247

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kilby v R [2023] NSWCCA 247
Hearing dates: 29 September 2023
Date of orders: 16 October 2023
Decision date: 16 October 2023
Before: Leeming JA [1]
Davies J at [2]
Wilson J at [47]
Decision:
(1) Extend time to 8 June 2023 for filing the Notice of Appeal
(2) Grant leave to appeal.
(3) Dismiss the appeal.

Catchwords:
CRIME – appeals – appeal against sentence – multiple counts of historical child sexual abuse against two complainants – whether complainant was under authority of the offender as a consequence of extended family and family interactions – described by sentencing judge as an aggravating feature – whether sentencing judge fell into De Simoni error by considering aggravating circumstance that applicant abused position of authority – sentencing judge did not consider the position of authority as establishing a feature of statutory aggravation – issue of authority part of the instinctive synthesis – error not made out – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW) ss 61I, 61J, 61M, 61N, 61O, 66C, 66EA
Crime (Sentencing Procedure) Act 1999 (NSW) s 21A

Cases Cited:
Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504
Cordeiro v R [2019] NSWCCA 308
Jadron v R [2015] NSWCCA 217; (2015) 253 A Crim R 450
RD v R [2013] NSWCCA 306
Rainbow v R [2018] NSWCCA 42
The Queen v De Simoni (1981) 147 CLR 383

Texts Cited:
Nil

Category: Principal judgment
Parties: Thaddeus Kilby (Applicant)
The King (Respondent)
Representation:
Counsel:
S Goodwin (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Voros Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/368545
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

20 August 2021

Before:

Turnbull SC DCJ

File Number(s):

2019/368545

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was found guilty after a trial by jury of six counts of child sexual abuse including indecent assault, unlawful sexual intercourse and an act of indecency. He was sentenced to an aggregate sentence of imprisonment for 9 years with a non-parole period of 5 years and 5 months. The indicative sentences for counts 2 and 3, the subject of this appeal, were 7 years and 9 months’ imprisonment respectively.

The overall offending involved two complainants, being VH (counts 1–3) and TP (counts 4–6) and took place between December 2007 and December 2010 and December 2016 and August 2017. VH was friends with one of the applicant’s daughters, CH. Counts 2 and 3 occurred when VH had a sleepover at the applicant’s house. VH woke up to find the applicant touching her buttocks over the top of her clothes. The applicant rolled VH over and put two fingers inside her vagina. As he did so, he had his other hand on his penis, masturbating it.

When assessing the objective seriousness of counts 2 and 3,…

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 The King

Details

AGLC: Kilby v The King [2023] NSWCCA 247
Case: [2023] NSWCCA 247
Decision Date: 16 October 2023

CaseChat Overview and Summary

In the case of Kilby v The King, the appellant was convicted on multiple counts of historical child sexual abuse involving two complainants. The case was heard and determined in the High Court of Australia, which was asked to consider an appeal against the sentence imposed on the appellant. The appeal focused on the sentencing judge's consideration of the appellant's abuse of a position of authority over the complainants, which the judge had described as an aggravating feature of the crime.

The central legal issue before the court was whether the sentencing judge erred in considering the appellant's abuse of a position of authority as an aggravating circumstance. The court needed to determine if the sentencing judge had fallen into the error identified in the decision of De Simoni, where it was held that the position of authority must be established as a feature of statutory aggravation before it can be considered as an aggravating circumstance. The court also had to examine whether the consideration of authority was part of the instinctive synthesis or if it constituted a separate error.

The High Court held that the sentencing judge did not commit the error identified in De Simoni. The court found that the sentencing judge had not considered the position of authority as establishing a feature of statutory aggravation but rather as part of the instinctive synthesis of the totality of the circumstances. Therefore, the court concluded that the error was not made out. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders