Kirk v Hicks

Case [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…

Continue reading Kirk v Hicks

Sign in free to access the full text

Details
AGLC
Kirk v Hicks [2024] ACTSC 363
Case
[2024] ACTSC 363
Decision Date

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.