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Court of Criminal Appeal 16 October 2023

Kilby v R

[2023] NSWCCA 247

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE ERROR NOT MADE OUT APPEAL DISMISSED

Citation: Kilby v R [2023] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 16 October 2023
Judges: Leeming JA, Davies J, Wilson J

Background

The applicant was convicted by jury of six counts of historical child sexual abuse against two complainants, VH and TP, with offending occurring across two periods between 2007 and 2017. The offences included indecent assault, sexual intercourse with a child aged between 10 and 14 years, and acts of indecency. The applicant was a family acquaintance of both complainants, with VH being a close friend of his daughter who attended sleepovers at the family home.

The sentencing judge in the District Court imposed an aggregate sentence of nine years' imprisonment with a non-parole period of five years and five months. When assessing the objective seriousness of counts 2 and 3 (the sexual intercourse and act of indecency offences relating to VH), the judge accepted that VH was "under the authority" of the applicant, describing this as an "aggravating feature" arising from the extended family and family interactions.

The applicant sought leave to appeal against sentence on a single ground: that the sentencing judge had breached the principle in The Queen v De Simoni (1981) 147 CLR 383 by taking into account, as an aggravating circumstance, that the applicant had abused a position of authority. The De Simoni principle prohibits a sentencing court from treating a circumstance as aggravating if that circumstance would establish a more serious offence than the one for which the offender was actually convicted.

  • Whether the sentencing judge breached the De Simoni principle by describing the applicant's position of authority as an "aggravating feature" when sentencing for counts 2 and 3.
  • Whether that description amounted to treating the position of authority as either proof of a more serious form of the offence, or as a feature of statutory aggravation under s 21A(2)(k) of the Crime (Sentencing Procedure) Act 1999 (NSW).
  • Whether the language of "aggravating feature" in a sentencing judgment necessarily signals a finding of statutory aggravation.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. Davies J and Wilson J (with Leeming JA agreeing) held that no De Simoni error had been made out.

The Court found that the sentencing judge did not treat the applicant's position of authority as establishing either a more serious form of the relevant offences under the Crimes Act 1900 (NSW) or a feature of statutory aggravation under s 21A(2)(k) of the Crime (Sentencing Procedure) Act 1999. Instead, the position of authority was considered as a factual feature of the offending as part of the instinctive synthesis, which is the process by which a sentencing judge weighs all relevant factors and arrives at an appropriate sentence without rigidly ranking them.

Wilson J emphasised that the sentencing judge's use of the phrase "aggravating feature" was not the specific statutory language required to engage s 21A(2). The judge's qualification that the authority existed "at least in the expectations of the complainants" further demonstrated that the finding was not intended to import a more serious offence. Reading the judgment as a whole, and in the context of the cases presented by both parties, made this clear.

The Court confirmed that a factual circumstance, including a position of authority, can legitimately inform the assessment of objective seriousness as part of the instinctive synthesis without breaching the De Simoni principle. Courts must always read a sentencing judgment as a whole rather than isolating individual words or phrases.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A factual feature of an offence, such as a position of authority over a victim, may be considered as part of the instinctive synthesis in sentencing without constituting proof of a more serious offence or a finding of statutory aggravation under s 21A(2) of the Crime (Sentencing Procedure) Act 1999.
  • The De Simoni principle is not breached merely because a sentencing judge uses the word "aggravating" to describe a factual circumstance. That language carries a distinct meaning in the context of instinctive synthesis that predates the statutory framework.
  • Sentencing judgments must be read as a whole. Isolating a word, phrase, or passage and treating it as evidence of legal error is an approach the Court of Criminal Appeal expressly rejected.
  • Where the language "aggravating feature" appears in sentencing remarks, its character depends on context: whether the judge was making a statutory finding under s 21A(2) or simply acknowledging a morally relevant circumstance within the sentencing process is a matter for the judgment read in full.
  • Although the word "aggravating" in this context has previously been described by the Court of Criminal Appeal as "infelicitous," its use does not of itself establish that a sentencing court has strayed into De Simoni error.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61I, 61J, 61M, 61N, 61O, 66C, 66EA
- Crime (Sentencing Procedure) Act 1999 (NSW): s 21A (including s 21A(2)(k))

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Burr v The Queen [2020] NSWCCA 282; (2020) 285 A Crim R 504
- Cordeiro v R [2019] NSWCCA 308
- Jadron v R [2015] NSWCCA 217; (2015) 253 A Crim R 450
- Rainbow v R [2018] NSWCCA 42
- RD v R [2013] NSWCCA 306