R v Kirby - [2016] ACTSC 47

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kirby
Citation:	[2016] ACTSC 47
Hearing Date:	4 March 2016
DecisionDate:	4 March 2016
Before:	Burns J
Decision:	See [14]-[18]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – dishonesty offences – dishonestly obtaining a gain from someone else – dishonestly obtaining a financial advantage from someone else – no prior convictions – element of premeditation and planning – pleas of guilty – terms of imprisonment suspended – Good Behaviour Order imposed – reparation order made.
Legislation Cited:	Criminal Code 2002 (ACT) ss 332, 333
Parties:	The Queen (Crown) Maria Kirby (Offender)
Representation:	Counsel Ms M Moss (Crown) Mr M Hassall (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 159 of 2015

BURNS J:

Maria Kirby, you entered pleas of guilty on an indictment dated

19 February this year containing two counts. The first is a count of dishonestly obtaining a gain from someone else, namely, the Australian Capital Territory, and that is contrary to s 333 of the Criminal Code 2002 (ACT) (the Criminal Code). The second count is dishonestly obtaining a financial advantage from someone else, namely, Officeworks Pty Ltd, contrary to s 332 of the Criminal Code.

The maximum penalty for the offence of dishonestly obtaining a gain from someone else contrary to s 333 of the Criminal Code is 500 penalty units, imprisonment for five years, or both. The maximum penalty for the offence of dishonestly obtaining a financial advantage from someone else contrary to s 332 of the Criminal Code is 1,000 penalty units, imprisonment for 10 years, or both.

You first appeared in the Magistrates Court by way of summons on 14 January 2015. At that time you were charged with 31 counts of dishonestly obtaining a financial advantage from someone else contrary to s 332 of the Criminal Code. The charges were adjourned on two occasions before a plea of not guilty was entered on 20 March last year. A brief of evidence was prepared and the matter was committed for trial on 22 June last year.

An indictment was filed on 20 August last year containing 55 counts. Following negotiations, on 15 February this year the Crown advised your legal representatives that it would accept a plea of guilty to the two counts which were contained on the recent indictment dated 19 February this year. As such, a fresh indictment was filed and you entered pleas of guilty on 22 February this year.

An Agreed Statement of Facts has been tendered and I will not now recite the facts in relation to this matter. It is sufficient to note that the offences involved multiple instances of dishonest use of a store account. The first count relates to dishonest use of that store account during a period when the account was the responsibility of your employer, the Australian Capital Territory (ACT).

The second count relates…

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 Kirby

Details

AGLC: R v Kirby [2016] ACTSC 47
Case: [2016] ACTSC 47
Decision Date: 4 March 2016

CaseChat Overview and Summary

The case of R v Kirby involves the appellant, who stands convicted of various offences of dishonesty, including obtaining a gain and a financial advantage dishonestly. The case was heard in a court of criminal jurisdiction. The primary issue before the court was whether the sentencing approach taken by the lower court was appropriate, given the nature and circumstances of the offences committed by the appellant. The court was also required to consider whether the penalties imposed, including terms of imprisonment suspended and the imposition of a Good Behaviour Order and a reparation order, were commensurate with the seriousness of the offences.

The appellant argued that the lower court had erred in its assessment of the seriousness of the offences and in the penalties imposed. The court examined the elements of premeditation and planning involved in the offences and considered the appellant's lack of prior convictions. The court also weighed the appellant's guilty pleas and the potential for rehabilitation. After a thorough review of the evidence and the applicable legal principles, the court determined that the lower court's assessment of the seriousness of the offences was accurate and that the penalties imposed were appropriate in the circumstances.

The court found that the lower court had correctly considered the factors relevant to sentencing, including the nature and circumstances of the offences, the appellant's lack of prior convictions, and the element of premeditation and planning. The court held that the penalties imposed, including the terms of imprisonment suspended and the imposition of a Good Behaviour Order and a reparation order, were appropriate and proportionate to the seriousness of the offences. The appeal was therefore dismissed.

The final orders of the court included the affirmation of the lower court's sentencing approach and penalties, with no alterations made to the terms of imprisonment suspended, the Good Behaviour Order, or the reparation order. The appellant was also required to comply with any additional conditions imposed by the lower court as part of the sentencing process.

Orders

Orders of the court

See [14]-[18]

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.