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 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 CAN 4585/2023,…
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- Roncevic v Boxx [2015] ACTSC 53
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CaseChat Overview and Summary
The legal issues at the heart of the appeal revolved around the appropriate sentence for a stalking offence and the balance between aggravating and mitigating factors. The court had to consider whether the trial judge erred in the weight given to certain factors, specifically the impact of the stalking on the victim and the defendant's history of similar behaviour. The appeal also questioned whether the sentence imposed was manifestly excessive.
The Court of Appeal reviewed the sentencing principles applicable to stalking offences and examined the evidence presented at the original trial. The court found that while the trial judge had considered relevant factors, there was an error in the weight attributed to the impact on the victim. The court noted that the trial judge had failed to adequately consider the defendant's remorse and the absence of any physical harm to the victim. Consequently, the court determined that the sentence was manifestly excessive. The appeal was allowed, and the case was remitted to the County Court for re-sentencing.
The final orders of the Court of Appeal were that the appeal be allowed, the conviction be upheld, and the matter be remitted to the County Court for the purpose of re-sentencing. The court emphasised that the re-sentencing should properly reflect the principles of proportionality and deterrence, taking into account all relevant mitigating and aggravating factors.
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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