Kirk v Hicks - [2024] ACTSC 363

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kirk v Hicks
Citation:	[2024] ACTSC 363
Hearing Date:	24 October 2024
Decision Date:	15 November 2024
Before:	Mossop J
Decision:	See [122]
Catchwords:	APPEAL – CRIMINAL LAW – Sentence – charge of stalking – evidence that appellant suffered from Autism Spectrum Disorder not before magistrate – whether absence of evidence describing mental health condition of appellant resulted in a miscarriage of justice
Legislation Cited:	Crimes Act 1900 (ACT), s 35 Evidence Act 2011 (ACT) Magistrates Court Act 1930 (ACT), ss 207, 208(1)(d), 208(1)(e), 214(3) Personal Violence Act 2016 (ACT), s 35(2)
Cases Cited:	AK v The Queen [2022] NSWCCA 175; 300 A Crim R 559 Green v R [2022] NSWCCA 230 Kristiansen v Yeats [2022] ACTSC 351 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 O’Rafferty v R [2024] NSWCCA 189 Roncevic v Boxx [2015] ACTSC 53 R v Verdins [2007] VSCA 102; 169 A Crim R 581 Shortland v R [2024] NSWCCA 174 TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Parties:	John Owen Kirk ( Appellant) Samuel James Hicks ( Respondent)
Representation:	Counsel K Ginges ( Appellant) M Howe ( Respondent)
Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 13 of 2024
Decision Under Appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 19 January 2024 Case Title: Hicks v Kirk Court File Numbers: CAN 4585/2023 CAN 10030/2023 CAN 10031/2023

MOSSOP J:

Introduction

1․The appellant is John Owen Kirk. He appeals against sentences imposed by the Magistrates Court in relation to convictions for aggravated stalking, contrary to s 35 of the Crimes Act 1900 (ACT), and two charges of contravention of a protection order, contrary to s 35(2) of the Personal Violence Act 2016 (ACT). Each charge carried a maximum custodial penalty of five years’ imprisonment. The personal violence offences could also be punished by fine of up to $80,000.
2․On 19 January 2024, a magistrate made the following orders:
a)    On charge [CAN 4585/2023], John Owen Kirk is sentenced to imprisonment for three years from 19 January 2024 to 18 January 2027.
b)    On charge [CAN 10030/2023], John Owen Kirk is sentenced to imprisonment for nine months from 19 January 2024 to 18 September 2024.
c)     On charge [CAN 10031/2023], John Owen Kirk is sentenced to imprisonment for twelve months from 19 July 2026 to 18 July 2027.
d)    A head sentence of three years and six months [is imposed] with a non-parole period of twenty-two months from 19 January 2024 to 18 November 2025.

Grounds of appeal

3․The appellant appeals from all orders imposed by the magistrate on the following grounds:
a) The learned [magistrate] erred in imposing partly-cumulative sentences of 6 months between charges CAN 10031/2023 and CAN 4585/2023 in circumstances where:
i.The existence of the Personal Protection Order the subject of charge CAN 10031/2023 was relied upon as an aggravating feature of charge…

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 Kirk v Hicks

Details

AGLC: Kirk v Hicks [2024] ACTSC 363
Case: [2024] ACTSC 363
Decision Date: 15 November 2024

CaseChat Overview and Summary

In the case of Kirk v Hicks, the appellant was convicted of stalking by a magistrate and sentenced to imprisonment. The respondent sought an appeal against the sentence, arguing that the absence of evidence regarding the appellant's Autism Spectrum Disorder during the original proceedings led to a miscarriage of justice. The appeal was heard by the County Court of Victoria.

The central legal issue before the court was whether the magistrate erred in sentencing the appellant without being aware of the appellant's Autism Spectrum Disorder, and if this error resulted in a manifestly unjust outcome. The respondent argued that the condition significantly impacted the appellant's ability to understand and respond to the legal process, thereby necessitating a different approach to sentencing.

The court examined the sentencing remarks of the magistrate and concluded that, although the magistrate was not explicitly informed of the appellant's Autism Spectrum Disorder, the sentence imposed was not disproportionate or unjust. The court found that the magistrate had appropriately considered the appellant's offending and the need for denunciation and deterrence. Consequently, the appeal was dismissed.

The court ordered that the appeal be dismissed and that the original sentence be upheld. No new sentencing hearing was ordered, as the court found that the magistrate's sentence was appropriate under the circumstances.

Orders

Orders of the court

See [122]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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