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R v Kilby (No 2)

R v Kilby (No 2)

Case [2025] NSWSC 748 14 July 2025

Criminal Liability

Sentencing

Mens Rea & Intention

Unconscionable Conduct

Restitution

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Kilby (No 2) [2025] NSWSC 748
Hearing dates: 7 July 2025
Date of orders: 14 July 2025
Decision date: 14 July 2025
Jurisdiction: Common Law
Before: Yehia J
Decision:
(1) Mr Roger Kilby is convicted.
(2) Mr Kilby is sentenced to a non-parole period of 12 years and 6 months’ imprisonment commencing on 12 March 2023, with an additional term of 5 years and 6 months’ imprisonment. The total term is 18 years’ imprisonment. The date upon which Mr Kilby is first eligible to be released on parole is 11 September 2035.
(3) Roger Kilby, the offence of murder is a “serious violence offence” as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and its application to the offence you have committed.

Catchwords:
CRIME – Sentence – murder – violent assault – offence committed in the home of the deceased – plea of guilty at the first opportunity – childhood deprivation and disadvantage – childhood exposure to extensive drug use in extended family – reduction in moral culpability – genuine remorse – difficulty in predicting prospects of rehabilitation and likelihood of reoffending – progress in custody – special circumstances

Legislation Cited:
Crimes Act 1900 (NSW), s18(1)(a), 19A
Crimes (High Risk Offenders) Act 2006 (NSW), 5A, 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), 3A, 21A(3)(i), 25D(2)(a), 30E(1), 47(2), 54D

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58
Edquist-Wheeler v R [2024] NSWCCA 49
Martino v The King [2024] NSWCCA 93
Mattiussi v R [2023] NSWCCA 289
R v Chatimba (No 2) [2021] NSWSC 863
R v Doolan [2023] NSWSC 821
R v Knight [2023] NSWSC 321
R v Smith [2024] NSWSC 437
R v Washbrook [2019] NSWSC 1143
Wilson v R [2025] NSWCCA 86

Category: Sentence
Parties: Rex (Crown)
Roger James Kilby (Defendant)
Representation:
Counsel:
J Stanhope (Crown)
N Broadbent SC (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service (NSW/ACT) (Defendant)

File Number(s): 2023/00081902
Publication restriction: Nil

JUDGMENT

On 11 March or 12 March 2023, Roger James Kilby (“the offender”), murdered Andrew John Anthoney (“the deceased”) by violently assaulting him in his own home. He handed himself into police the following day (or the same day) and was charged with murder.
On 21 February 2025, at Parkes Local Court, the offender was committed for sentence to the Supreme Court of New South Wales, following a plea of guilty.
Mr Kilby must now be sentenced for murder, an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (“Crimes Act”). The offence carries a maximum penalty of life imprisonment (s 19A of the Crimes Act), with a standard non-parole period of 20 years’ imprisonment: see item 1 of the table…

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 Kilby (No 2)

Details

AGLC: R v Kilby (No 2) [2025] NSWSC 748
Case: [2025] NSWSC 748
Decision Date: 14 July 2025

CaseChat Overview and Summary

The case of R v Kilby (No 2) involves the defendant, Kilby, who pled guilty to the charge of murder. The offence was committed in the home of the deceased, resulting in a violent assault. The matter was heard in the Supreme Court of Victoria. Kilby's legal team argued for a lesser sentence, citing his childhood filled with deprivation and disadvantage, extensive drug use within his extended family, and a plea of guilty at the earliest opportunity. They also highlighted Kilby's genuine remorse and his progress while in custody.

The court was required to balance the gravity of the crime with Kilby's mitigating factors. It needed to consider the extent of his moral culpability, which was arguably reduced by his difficult upbringing, and assess his prospects for rehabilitation and the likelihood of reoffending. The court also had to weigh the severity of the offence, committed in the home of the deceased, against Kilby's remorse and progress while in custody.

In delivering its judgment, the court acknowledged the significant mitigating factors presented. It noted Kilby's plea of guilty, his challenging childhood, and the remorse he displayed. However, it also recognised the heinous nature of the crime, the violent assault in the victim's home, and the difficulty in predicting Kilby's future conduct. After careful consideration, the court determined that while Kilby's background and remorse were mitigating factors, they did not sufficiently outweigh the severity of the offence. The court imposed a sentence that reflected both the gravity of the crime and the mitigating circumstances.

The court ordered Kilby to serve a custodial sentence, taking into account the special circumstances presented by his background and progress in custody. The specific details of the sentence, including the minimum non-parole period, were determined by the court based on the evidence and arguments presented.

Orders