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Supreme Court 14 July 2025

R v Kilby (No 2)

[2025] NSWSC 748

Assault & violenceHomicide
CRIME SENTENCE MURDER VIOLENT ASSAULT PLEA OF GUILTY AT THE FIRST OPPORTUNITY CHILDHOOD DEPRIVATION AND DISADVANTAGE

Citation: R v Kilby (No 2) [2025] NSWSC 748
Court: Supreme Court of New South Wales
Date: 14 July 2025
Judge: Yehia J

Background

The offender, a 38-year-old man, murdered Andrew Anthoney (aged 57) by violently assaulting him inside his own home on the night of 11 to 12 March 2023, in the Peak Hill area. In the days leading up to the offence, the offender had repeatedly attended the deceased's home uninvited, stolen property, and caused the deceased to call police multiple times, including once when the offender turned off the electricity to the house.

On the night of the murder, the offender attended a local RSL club and consumed alcohol. He then went to the deceased's home, intending to confront him about material he believed he had found on a mobile phone stolen from the deceased. A verbal argument escalated into a sustained physical assault: the offender punched the deceased multiple times and stomped on him at least once, causing fatal injuries. The post-mortem revealed extensive injuries to the head, face, neck, and torso, including facial and jaw fractures.

The offender handed himself in to police the following day. He was committed for sentence to the Supreme Court following a guilty plea at Parkes Local Court on 21 February 2025. The matter proceeded as a sentencing hearing, with agreed facts tendered and victim impact statements read on behalf of the deceased's family.

  • What was the appropriate sentence for murder, taking into account the objective seriousness of the offence?
  • What weight should be given to the offender's childhood deprivation and disadvantage in assessing moral culpability?
  • Was a 25% reduction for the guilty plea applicable, and did special circumstances exist to justify adjusting the ratio of non-parole period to additional term?
  • What findings could be made about the offender's prospects of rehabilitation and likelihood of reoffending?

Decision

Yehia J assessed the offence as objectively serious. The assault was sustained and violent, causing extensive injuries. The offender committed the offence in the deceased's home, while on conditional bail, and against a man who had taken steps to protect himself from the offender in the days before his death. Although the Crown accepted it was reasonably possible the offender did not intend serious injury when he first arrived, the Court found that during the assault the offender had formed an intention to cause grievous bodily harm. The Court was unable to find beyond reasonable doubt that the offender had attended intending to exact retribution, or that he had switched off the power to the house.

On the subjective case, the Court accepted that the offender's deprived and disadvantaged childhood, including significant exposure to drug use within his extended family, reduced his moral culpability in accordance with the principles in Bugmy v The Queen. The offender pleaded guilty at the first available opportunity, and received the full 25% utilitarian discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court also accepted that the offender had demonstrated genuine remorse.

The Court acknowledged that predicting the offender's prospects of rehabilitation and likelihood of reoffending presented some difficulty, but noted positive progress made during his period in custody. Special circumstances were found to exist, justifying a departure from the standard ratio between the non-parole period and the additional term, to provide a longer period of supervised release and support the offender's rehabilitation upon re-entry into the community.

Yehia J reviewed comparable sentencing decisions and applied them with caution, noting that no two cases are identical. The sentence of 18 years' imprisonment, with a non-parole period of 12 years and 6 months, reflected the full range of aggravating and mitigating factors after the guilty plea discount was applied.

Orders Made

  • The offender, Roger Kilby, is convicted of murder.
  • Sentenced to a total term of 18 years' imprisonment, comprising a non-parole period of 12 years and 6 months commencing 12 March 2023, plus an additional term of 5 years and 6 months.
  • The earliest eligible parole date is 11 September 2035.
  • The Court noted that the murder constitutes a "serious violence offence" under s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW), and the offender was advised of that legislation's existence and potential application pursuant to s 25C of that Act.

Key Takeaways

  • A guilty plea entered at the first available opportunity attracted the full 25% utilitarian discount under s 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where the objective seriousness of a murder is high.
  • Under the principles in Bugmy v The Queen (2013) 249 CLR 571, a background of childhood deprivation and exposure to pervasive drug use within the extended family can reduce an offender's moral culpability, and this reduction does not diminish with the passage of time.
  • Committing murder in the victim's own home, while on conditional bail, and against a person who had repeatedly sought police protection from the offender in the preceding days, were significant aggravating features in the objective assessment of the offence.
  • Special circumstances can justify adjusting the statutory ratio between the non-parole period and the additional term where a longer period of supervised post-release support is warranted, particularly where the offender's rehabilitation trajectory remains uncertain.
  • The Supreme Court reiterated that no single purpose of sentencing is paramount in a murder case: punishment, deterrence, denunciation, protection of the community, and rehabilitation must all be weighed together.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 19A
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(i), 25D(2)(a), 30E(1), 47(2), 54D

Cases
- 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