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[2025] ACTSC 341
General information, not legal advice.
Supreme Court of the ACT
2025-08-01
Kelly AJ
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Kalvakuntla v Horton Citation: [2025] ACTSC 341 Hearing Dates: 22 July 2025 Decision Date: 1 August 2025 Before: Kelly AJ Decision: The appeal is dismissed. Catchwords: APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court – appeal against conviction – family violence – aggravated assault – whether the Magistrate erred in her approach to section 17 considerations of the Crimes (Sentencing) Act Legislation Cited: Crimes (Sentencing) Act 2005 (ACT), s 17 Magistrates Court Act 1930 (ACT), pt 3.10 Cases Cited: Cooper v Corsivy (No 2) [2010] ACTSC 166; 5 ACTLR 151 House v The King [1936] HCA 40; 55 CLR 499 Vuolo v Fall [2023] ACTCA 33; 380 FLR 177 Parties: Venkat Sanjay Reddy Kalvakuntla (Appellant) Luke Horton (Respondent) Representation: Counsel A Williamson SC (Appellant) E Wren (Respondent) Solicitors Tim Sharman Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) File Number: SCA 64 of 2024 Decision Under Appeal: Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Campbell Date of Decision: 15 November 2024 Case Title: Police v Kalvakuntla Court File Number: 243997 KELLY AJ: Introduction
This is an appeal from an order made by a Magistrate on 15 November 2024 convicting the appellant and requiring him to enter into an order to be of good behaviour for a period of 12 months.
This Court has jurisdiction pursuant to Pt 3.10 of the Magistrates Court Act 1930 (ACT) to hear an appeal against sentence or penalty imposed.
I accept that the principles to be applied are those set out in Cooper v Corsivy (No 2) [2010] ACTSC 166; 5 ACTLR 151. Justice Refshauge observed at [8]: [8] In Ledson v Taylor (2010) 239 FLR 184, I set out (at [46]) the principles upon which such appeals are to be conducted. These were: 1. The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error. 2. In finding the facts, the appellate court is in as good a position as the lower court to decide the proper inferences to be drawn from the undisputed facts where no oral evidence is given in the court below, or the Trial Judge’s findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the Magistrate, although, once having reached its own conclusion, must give effect to it. 3. The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the lower court. 4. A legal, factual or discretionary error may be found where the Lower Court, inter alia, has taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts. …
I accept that it is only if this Court is satisfied that the exercise of the sentencing discretion was infected by patent or latent error of the kind identified in House v The King [1936] HCA 40; 55 CLR 499 that this Court should interfere with the sentence.
Background
The parties are not in dispute that the appellant’s subjective case put to the Magistrate was as set out in the appellant’s outline of argument from [12] to [20].
In summary, the appellant is a 43-year-old man with no prior criminal history. He is married to the victim in this matter who is his wife. They have one son together.
On the date of the offence, the appellant and the victim were training at a gym. The victim walked out of the gym when the appellant followed her and struck her on the face. Shortly thereafter they had an argument in a public street and he struck her on the face with an open palm with a slap that was loud enough to be heard by bystanders. The police were called by bystanders and the appellant was originally charged with two offences of assault, however, he eventually pleaded guilty to one rolled up charge to aggravated assault. There was evidence before the Magistrate of genuine remorse, steps towards rehabilitation by counselling and statements from friends and colleagues were tendered attesting to the fact that this conduct was entirely out of character.
The sole ground of appeal was that the Magistrate erred in her consideration of s 17 of the Crimes (Sentencing) Act 2005 (ACT).
Section 17 of the Crimes (Sentencing) Act states: 17 Non-conviction orders—general (1) This section applies if an offender is found guilty of an offence. (2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order): (a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender; (b) a good behaviour order under section 13. Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87). (3) In deciding whether to make a non-conviction order for the offender, the court must consider the following: (a) the offender’s character, antecedents, age, health and mental condition; (b) the seriousness of the offence; (c) any extenuating circumstances in which the offence was committed. (4) The court may also consider anything else the court considers relevant. Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10). (5) If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender. Note 1 For notice of a good behaviour order under s (2) (b), see s 103. Note 2 For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J). (6) Failure to comply with subsection (5) does not invalidate the non-conviction order. (7) If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years. (8) This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).
In argument, the appellant’s counsel articulated the appellant’s complaints under this ground that the Magistrate failed to identify the crux of the statutory test in s 17, but simply recited the facts and the appellant’s subjective case then spent only three paragraphs at the conclusion of her remarks dealing with s 17.
The second complaint made was that the Magistrate failed to engage with the appellant’s submissions at first instance as they related to the principal in Vuolo v Fall [2023] ACTCA 33; 380 FLR 177.
The third complaint was that the Magistrate acted on a wrong principle in assessing the objective seriousness of the offending. According to the appellant’s argument, a proper application of the principle would have involved an acknowledgement by the Magistrate that neither the seriousness of the offence alone, nor the fact that it occurred in a family violence context were determinative as to whether a non-conviction order should be made.
The Magistrate’s Reasons
Her Honour commenced her sentencing remarks by explaining why the appellant deserved a full discount for the plea. She acknowledged the victim impact statement in some detail referring to the steps the appellant had taken to rehabilitate including attending counselling, expressing remorse and she noted the positive character references in which all of the referees spoke of the appellant’s behaviour on the day in question is out of character.
She then said: In assessing the objective seriousness of the offence, I note that it occurred in public. What we do see in family violence is often these offences occur behind closed doors where people can’t intervene, where witnesses – there are no other witnesses. And so this is occurred in public street and was stopped by members of the public. And I agree that probably this matter would not have come to the attention of the police had it not been for those members of the public. It is a rolled-up charge and that is – increases the criminality of the offences. I note that in – the defendant – in a – he participated in a record of interview. He said he may have slapped her and he admitted to grabbing her hand, but he makes no admissions at that point as to striking her on the second – on the two occasions other than saying he may have slapped her. … Mr Kalvakuntla comes before the court without any criminal history and that allows the court to treat him with some leniency. I accept he is remorseful for this offending; it is reflected in his plea of guilty but it’s also clearly reflected in the – his character reference and his wife’s comments.
The Magistrate then explained why the context of family violence attracts greater penalties than ordinary common assault.
The Magistrate then concluded by saying: I take into account the one day you spent in custody. The defendant’s counsel has made an application and I exercise my discretion pursuant to section 17. I have considered the comments that I’ve been referred to in the decision of Vuolo v Fall [2023] ACTCA 33, and that the imposition of a non-conviction with a good behaviour order can, in effect, still be a serious penalty for someone. I have taken into account the fact that Mr Kalvakuntla doesn’t have any criminal history. He’s obviously a person of good character. It is, however, my view that the objective seriousness of the offending, a strike of such force that was heard across the street, the fact the offending was very much about, first of all, not preventing his wife from leaving, then running towards her when she was walking away. It bespeaks of sort of controlling and coercive behaviour. In my view the objective seriousness of the offending is not adequately reflected by a non-conviction and, in those circumstances, I am going to impose a conviction.
When the Magistrate’s remarks as a whole are considered, I do not consider that any of the complaints made by the appellant are borne out. It is not correct to say that the Magistrate failed to identify the crux of the test in s 17 and spent only three paragraphs at the end dealing with s 17.
It is apparent that in addressing the appellant as she did in the whole of her remarks that she was well aware of the factors in s 17 which needed to be taken into account and was actually addressing them all as she gave her reasons.
It is also plain that the Magistrate took into account the observations made by this Court in Vuolo v Fall that a non-conviction order with a good behaviour order attached is still a significant punishment. She expressly referred to that decision. It is almost insulting to suggest that the Magistrate failed to grasp the import of that decision in relation to her own sentencing considerations.
The Magistrate’s reference to the objective seriousness of the offending in the context of explaining why she was not prepared to impose a non-conviction order does not demonstrate error. It is one of the factors in s 17 that she was required to take into account in any event, along with the other matters all of which the Magistrate referred to throughout her remarks.
I accept that the Court can only interfere with the sentence if error has been established. No error has been established here. In my view, in her accurate, if succinct, remarks, the Magistrate explained perfectly clearly why on this occasion she was not prepared to accede to the appellant’s application for a non-conviction order.
Order
I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Kelly. Associate: Date: 1 August 2025
Kalvakuntla
Horton [2025] ACTSC 341
(2010) 239 FLR 184