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R v Kibby

R v Kibby

Case [2023] NSWDC 471 27 October 2023

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Kibby [2023] NSWDC 471
Hearing dates: 27 October 2023
Decision date: 27 October 2023
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
1. Offender is sentenced to a maximum term of imprisonment of 4 years commencing 29 August 2023 and expiring on 28 August 2027.
2. I fix a non-parole period of 3 years, commencing 29 August 2023.
3. The first date the Offender will become eligible for is 28 August 2026.

Catchwords:
CRIME – Sentence – Single count of sexual intercourse without consent

Legislation Cited:
Crimes Act 1900, ss 61J s 61(H)(E)(3)(A), s 61(H)(E)(3)(B)
Crimes Sentencing Procedure Act1999, s 3(a)

Cases Cited:
Cheung v R (2001) 209 CLR 1, [2001] HCA 67
Dagdanasar v The Crown [2021] NSWCCA 178
Doe v R [2013] NSWCCA 248
Filippouv The Queen (2015) 256 CLR 47, [2015] HCA 29
Fisher v R ; R v Fisher [2021] NSWCCA 91
GW v R [2018] NSWCCA 79
Irmak v The Queen [2021] NSWCCA 178
Kelly v R [2022] NSWCCA 189
Leach v The Queen (2007) 230 CLR 1, [2007] HCA 3
Markarian v The Queen (2005) 228 CLR
MRW v R [2011] NSWCCA 260
R v Carter [2003] NSWCCA 243
R v Collier [2012] NSWCCA 213
R v Cranston [2023] NSWSC 1004
R v CTG [2017] NSWCCA 16
R v Daily [2010] NSWCCA 223
R v Isaacs (1997) 41 NSWLR 374
R v Simpson (2001) 53 NSWLR 704
R v Tuuta [2014] NSWCCA 40
Savvasv The Queen (1995) 183 CLR 1
Strbakv The Queen (2020) 267 CLR 494; [2020] HCA 10
The Queen vOlbrich (1999) 199 CLR 270
WAP v R [2017] NSWCCA 212
Weiningerv The Queen (2003) 212 CLR 629

Category: Sentence
Parties: Rex (Crown)
Kieran Kibby (Offender)
Representation:
Counsel:
P Madden (Crown)
M Smith (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Ian Byrne Lawyers (Offender)

File Number(s): 2021/39479
Publication restriction: None

JUDGMENT: ex tempore

Kieran Kibby, the Offender, is before the Court for sentence, having being convicted by a jury on 29 August 2023 of a single count of sexual intercourse without consent in circumstances of aggravation, contrary to s 61(J) of the Crimes Act 1900. The maximum penalty is 20 years’ imprisonment, and a standard non-parole period of 10 years applies.
By virtue of the guilty verdict, the jury was satisfied beyond reasonable doubt of the elements of the offence being:

The Offender had penetrated the victim’s anus with his finger.

The victim did not consent to that penetration.

The Offender knew that the victim did not consent to that penetration.

The Crown relied on two of the ways to establish the Offender knew the complainant was not consenting to the sexual intercourse:

Actual knowledge - s 61(H)(E)(3)(A) of The Crimes Act 1900.

Recklessness - s 61(H)(E)(3)(B) of The Crimes Act.

The facts

The trial took place before me and a jury. It ran for seven…

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 R v Kibby

Details

AGLC: R v Kibby [2023] NSWDC 471
Case: [2023] NSWDC 471
Decision Date: 27 October 2023

CaseChat Overview and Summary

In the case of R v Kibby, the offender was convicted of a single count of sexual intercourse without consent and the matter was brought before the relevant court for sentencing. The defendant had pleaded guilty to the charge, which arose from an incident where the offender engaged in sexual activity with a complainant without their consent. The court was tasked with determining an appropriate sentence that reflected the gravity of the offence while also considering the principles of justice and rehabilitation.

The legal issues before the court involved assessing the severity of the offence, taking into account the nature of the crime and the impact on the victim. The court had to consider various sentencing principles, including the need for denunciation, deterrence, and the protection of the community. Additionally, the court examined the offender's background, including their criminal history, personal circumstances, and any mitigating factors. The court was required to balance these considerations to arrive at a just outcome.

After evaluating the evidence and arguments presented, the court determined that the appropriate sentence was a maximum term of imprisonment of four years, with a non-parole period set at three years. The court found that the offender's actions were serious and warranted a significant custodial sentence. However, the court also acknowledged the offender's expressions of remorse and the potential for rehabilitation. The court concluded that the sentence imposed was commensurate with the gravity of the offence and would serve the interests of justice. The court ordered that the offender commence their sentence on 29 August 2023, with eligibility for parole from 28 August 2026.

Orders

Orders of the court

1. Offender is sentenced to a maximum term of imprisonment of 4 years commencing 29 August 2023 and expiring on 28 August 2027.

2. I fix a non-parole period of 3 years, commencing 29 August 2023.

3. The first date the Offender will become eligible for is 28 August 2026.

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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Citations

AGLC Citation

R v Kibby [2023] NSWDC 471

Most Recent Citation

Kibby v The King [2024] NSWCCA 207

Cases citing this decision · 1 of 1 shown

Kibby v The King
[2024] NSWCCA 207 Para 73

…imposed – against which there was quite properly no appeal – was substantially longer than the period Mr Kibby has spent in custody: R v Kibby [2023] NSWDC 471. Further, it seems the first two trials were aborted reasonably quickly after they commenced. In the circumstances, the discretion as to whether to proceed…

View all 1 citing cases →

Cases cited in this decision · 23 of 23 shown

R v Cranston
[2023] NSWSC 1004 Para 4

…ugust 2023. It falls to me to determine what facts were accepted by the jury beyond reasonable doubt. Payne JA in the recent decision in R v Cranston [2023] NSWSC 1004 set out a helpful summary of how that process is to be applied as follows:…
Kelly v R
[2022] NSWCCA 189 Para 8

…a victim is not proportional to the degree of penetration or the part of the Offender’s body which is inserted into the victim’s body. Kelly v R [2022] NSWCCA 189 at [34].…
Irmak v R; Dagdanasar v R
[2021] NSWCCA 178 Para 7

…nvolving as they do, the touching of another without consent so as to override the victim’s right to personal self-determination: Irmak v The Queen [2021] NSWCCA 178 and Dagdanasar v The Crown [2021] NSWCCA 178 at [314].…
Fisher v R; R v Fisher
[2021] NSWCCA 91 Para 12

…In a similar vein, Fullerton J said in Fisher v R ; R v Fisher [2021] NSWCCA 91 at 84:…
Strbak v The Queen
[2020] HCA 10 Para 4

…ities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1, [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494, [2020] HCA 10 at [32];…
GW v R
[2018] NSWCCA 79 Para 13

…Again, in GW v R [2018] NSWCCA 79 at 31 to 34, Fullerton J (with whom Hoeben CJ at CL and Davies J agreed in adopting what was said in R v CTG [2017] NSWCCA 16:…
WAP v R
[2017] NSWCCA 212 Para 30

…t mandatory and no inference of the absence of harm can be drawn from the fact that no such statement is placed before the Court on sentence. WAP v R [2017] NSWCCA 212 at [78]. In this case, I have heard from the victim in her evidence in the trial. She is an extremely impressive and dignified lady. Stoic and resili…
Owens v R
[2017] NSWCCA 16 Para 13

…Again, in GW v R [2018] NSWCCA 79 at 31 to 34, Fullerton J (with whom Hoeben CJ at CL and Davies J agreed in adopting what was said in R v CTG [2017] NSWCCA 16:…
Filippou v The Queen
[2015] HCA 29 Para 2

…In that case, the sentencer must leave that matter to one side and proceed on the basis of what can be found: Filippou v The Queen (2015) 256 CLR 47, [2015] HCA 29 at [70];…
R v Tuuta
[2014] NSWCCA 40 Para 51

…r period on parole would be likely to assist in an Offender’s rehabilitation. See for example, R v Carter [2003] NSWCCA 243 at para [20], R v Tuuta [2014] NSWCCA 40 at [57].…
Doe v R
[2013] NSWCCA 248 Para 9

…ding to the entirety of the facts in circumstances of the case. The kind of forced intercourse is not determinative of objective seriousness. Doe v R [2013] NSWCCA 248 at paras [48] and [54].…
Collier v R
[2012] NSWCCA 213 Para 50

…en identified by Mr Smith for the Offender. The first is that this is the Offender’s first time in prison. However, as was explained in R v Collier [2012] NSWCCA 213, whilst that is a relevant factor, it is not determinative.…
MRW v R
[2011] NSWCCA 260 Para 26

…e care not to double count, because built into the offence is the aggravating factor that the victim was in the Offender’s care. Cases like MRW v R [2011] NSWCCA 260 at [27] and [28], caution against factoring in a matter that is already built into the charge, the same matter as an aggravating factor. However, I thi…
R v Daley
[2010] NSWCCA 223 Para 11

…In R v Daily [2010] NSWCCA 223 at para [48], Price J (with Hodson JA and Fullerton J agreed) said of the duration of a sexual assault;…
Leach v The Queen
[2007] HCA 3 Para 4

…offender seeks to rely on a fact, the standard of proof is on the balance of probabilities: Olbrich at [27]-[28]; Leach v The Queen (2007) 230 CLR 1, [2007] HCA 3 at [41]; Filippou at [64], [66]; Strbak v The Queen (2020) 267 CLR 494, [2020] HCA 10 at [32];…
Markarian v The Queen
[2005] HCA 25 Para 48

…of the factors relevant to the sentence, weigh the significance of them, and then make an evaluative judgment as to what is the appropriate sentence: Markarian v The Queen (2005) 228 CLR at 375 per McHugh J. This has become to be known as the “instinctive synthesis”.…
R v Carter
[2003] NSWCCA 243 Para 51

…evidence or basis to conclude that a longer period on parole would be likely to assist in an Offender’s rehabilitation. See for example, R v Carter [2003] NSWCCA 243 at para [20], R v Tuuta [2014] NSWCCA 40 at [57].…
Weininger v The Queen
[2003] HCA 14 Para 1

…o the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;…
Cheung v The Queen
[2001] HCA 67 Para 5

…erdict of guilty, the sentencer is constrained to making findings of fact that are consistent with the jury’s verdict: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14], approving Isaacs at 376-377;…
R v Olbrich
[1999] HCA 54 Para 1

…a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;…
Regina v Simpson
[1999] NSWCCA 367 Para 50

…as to justify an adjustment of the non-parole period as a proportion of the head sentence. The principals are explained in cases such as R v Simpson (2001) 53 NSWLR 704. There are two factors that might qualify for special circumstances that have been identified by Mr Smith for the Offender. The first is that this is…
Savvas v R
[1995] HCA 29 Para 7

…Within this constraint, the sentencer can make findings as they see fit: Savvas v The Queen (1995) 183 CLR 1 at 8. There is no requirement to accept all of the Crown’s case as put to the jury: Cheung at [7]. Nor is the judge required to take a view of the facts most favourable to the offender: Isaacs at 377D.”…
The Queen v Olbrich
[1999] HCA 5418 Para 1

…“A sentencing judge has a duty to make, as far as possible, findings of fact relevant to the issues that will inform the sentence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1]; Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [16]-[17]; R v Isaacs (1997) 41 NSWLR 374 at 378;…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
3(a) 2 mentions (from Para 44)
Crimes Act 1900 (ACT)
61J 2 mentions (from Para 1)

Medium Neutral Citation:	R v Kibby [2023] NSWDC 471
Hearing dates:	27 October 2023
Decision date:	27 October 2023
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	1. Offender is sentenced to a maximum term of imprisonment of 4 years commencing 29 August 2023 and expiring on 28 August 2027. 2. I fix a non-parole period of 3 years, commencing 29 August 2023. 3. The first date the Offender will become eligible for is 28 August 2026.
Catchwords:	CRIME – Sentence – Single count of sexual intercourse without consent
Legislation Cited:	Crimes Act 1900, ss 61J s 61(H)(E)(3)(A), s 61(H)(E)(3)(B) Crimes Sentencing Procedure Act1999, s 3(a)
Cases Cited:	Cheung v R (2001) 209 CLR 1, [2001] HCA 67 Dagdanasar v The Crown [2021] NSWCCA 178 Doe v R [2013] NSWCCA 248 Filippouv The Queen (2015) 256 CLR 47, [2015] HCA 29 Fisher v R ; R v Fisher [2021] NSWCCA 91 GW v R [2018] NSWCCA 79 Irmak v The Queen [2021] NSWCCA 178 Kelly v R [2022] NSWCCA 189 Leach v The Queen (2007) 230 CLR 1, [2007] HCA 3 Markarian v The Queen (2005) 228 CLR MRW v R [2011] NSWCCA 260 R v Carter [2003] NSWCCA 243 R v Collier [2012] NSWCCA 213 R v Cranston [2023] NSWSC 1004 R v CTG [2017] NSWCCA 16 R v Daily [2010] NSWCCA 223 R v Isaacs (1997) 41 NSWLR 374 R v Simpson (2001) 53 NSWLR 704 R v Tuuta [2014] NSWCCA 40 Savvasv The Queen (1995) 183 CLR 1 Strbakv The Queen (2020) 267 CLR 494; [2020] HCA 10 The Queen vOlbrich (1999) 199 CLR 270 WAP v R [2017] NSWCCA 212 Weiningerv The Queen (2003) 212 CLR 629
Category:	Sentence
Parties:	Rex (Crown) Kieran Kibby (Offender)
Representation:	Counsel: P Madden (Crown) M Smith (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Ian Byrne Lawyers (Offender)
File Number(s):	2021/39479
Publication restriction:	None