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[2025] NSWSC 748
General information, not legal advice.
Supreme Court of NSW
2025-07-14
Yehia J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Kilby (No 2) [2025] NSWSC 748
Hearing dates: 7 July 2025
Date of orders: 14 July 2025
Decision date: 14 July 2025
Jurisdiction: Common Law
Before: Yehia J
Decision: (1) Mr Roger Kilby is convicted.
(2) Mr Kilby is sentenced to a non-parole period of 12 years and 6 months’ imprisonment commencing on 12 March 2023, with an additional term of 5 years and 6 months’ imprisonment. The total term is 18 years’ imprisonment. The date upon which Mr Kilby is first eligible to be released on parole is 11 September 2035.
(3) Roger Kilby, the offence of murder is a “serious violence offence” as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and its application to the offence you have committed.
Catchwords: CRIME – Sentence – murder – violent assault – offence committed in the home of the deceased – plea of guilty at the first opportunity – childhood deprivation and disadvantage – childhood exposure to extensive drug use in extended family – reduction in moral culpability – genuine remorse – difficulty in predicting prospects of rehabilitation and likelihood of reoffending – progress in custody – special circumstances
Legislation Cited: 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 Cited: 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
Category: Sentence
Parties: Rex (Crown)
Roger James Kilby (Defendant)
Representation: Counsel:
J Stanhope (Crown)
N Broadbent SC (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service (NSW/ACT) (Defendant)
File Number(s): 2023/00081902
Publication restriction: Nil
On 11 March or 12 March 2023, Roger James Kilby (“the offender”), murdered Andrew John Anthoney (“the deceased”) by violently assaulting him in his own home. He handed himself into police the following day (or the same day) and was charged with murder.
On 21 February 2025, at Parkes Local Court, the offender was committed for sentence to the Supreme Court of New South Wales, following a plea of guilty.
Mr Kilby must now be sentenced for murder, an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (“Crimes Act”). The offence carries a maximum penalty of life imprisonment (s 19A of the Crimes Act), with a standard non-parole period of 20 years’ imprisonment: see item 1 of the table at s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).
There is no dispute that the offender is entitled to a 25% reduction in his sentence pursuant to s 25D(2)(a) of the CSPA, to reflect the utilitarian value of the plea.
The violent death of Mr Anthoney has been extremely distressing and traumatising for his family. A victim impact statement has been read by Katrina Anthoney, representing the family. The deceased is described as a son, brother, cousin, uncle, nephew, and friend. The experience has been a shattering one for those left behind. I have had regard to the victim impact statement: s 30E(1) of the CSPA.
It is appropriate to commence these remarks by acknowledging the life lost. In matters such as this, judges are asked to perform an impossible equation. No human life can ever be equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.
The sentence I impose does not, and cannot, measure the value of Mr Anthoney’s life. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and protection of the community. It must hold the offender to account and reflect the objective seriousness of the offence. It must also reflect the offender’s subjective case, his moral culpability, his prospects of rehabilitation, and the likelihood, or unlikelihood, of future offending.
The purposes of sentencing require that the offender be punished and held to account for his actions. He will be sentenced to a term of imprisonment. The offender’s sentence to a term of full-time custody goes a long way to fulfilling those purposes. Punishment is not, however, the only purpose of sentencing. The offender will have to live with the burden of the consequences of his actions for the rest of his life. In many ways, that burden, far more than imprisonment, will be the offender’s punishment.
The deceased was 57 years of age at the time of his death. Mr Kilby was 38 years old.
The Statement of Agreed Facts sets out the events and the interactions between the offender and the deceased leading up to the evening of 11 March 2023. I have had regard to the contents of that document and accordingly, set out the following summary.
On 2 March 2023 at 1:30pm, the deceased and his housemate, Mr Shorten, made a complaint to the police that the offender, who attended their home from about 2:30am-5:00am that day, had stolen property from the premises.
On 9 March 2023 at 3:36pm, the deceased called triple zero to report that “a wanted man”, (a reference to the offender) was inside his home. The exchange with the triple zero operator was as follows:
000 operator: “is he a friend or a relative?”.
The deceased: “No, neither”.
000 operator: “did he break in, or was he invited in?”.
The deceased: “nuh, er oh I let him in, which I shouldn’t but I did”.
000 operator: “did he get physical with you”.
The deceased: “no”.
000 operator: “so is he just refusing to leave. Is that what’s happening?”.
The deceased: “yes”… “he robbed us the other day”.
On the same day at 4:47pm, the deceased rang triple zero again, from the home of a neighbour, to report that the offender and a second male were attempting to break into his home. The deceased confirmed that he had been at home but “had to go next door” when “they jumped the back fence, and they went up the backyard”.
At 4:48pm, the deceased rang the number provided to him by Senior Constable Rolfe and left a message, “... Roger came back with another fella and I uh think they might have tried to break in, I’m not sure, but yeah I fled next door so they might have just broken in, I don’t know...”.
On 10 March 2023 at 1:52am, the deceased called triple zero to report that the offender was attempting to break into his house. The deceased stated that the offender was trying to gain entry through the front door, back door, and had turned off the electricity to the house.
At around 2:26am a police vehicle attended the deceased’s home. The police searched the front and rear yards and a rear laneway and did not locate the offender. The deceased showed police the fuse box to the house. The power to the house had been switched off. The deceased, at that point, switched the power back on, reactivating the CCTV camera. The police asked about the CCTV at the premises, but the deceased was only able to locate footage from earlier in the day which showed the offender and a person in a hoodie at the premises and of the police searching the yard.
Later, on 10 March 2023, the offender had a conversation with Ms Thalia Reid where he told her that he had stolen the deceased’s phone. He said he had found child pornography on the phone. The offender said, “the fuckin dirty cunt, the paedophile...He has kid porn, imagine if he touched kids...”.
At about 4:45pm on 10 March 2023, the offender was located at Peak Hill and arrested for an unrelated matter. He was taken to Parkes Police Station where he was charged and remained there overnight.
At around 10:40am, the offender was granted conditional bail.
At about 5:30pm or 6:00pm, the offender is described as appearing “normal”, that is, not affected by alcohol or drugs.
At 9:32pm the offender attended Peak Hill RSL Club, where he had multiple drinks. At 10:12pm, the offender was standing up at a table. Immediately after, the offender was stumbling over his feet. The offender attempted to jump off his chair and was wobbly on his feet.
The offender left the club on his own at 10:36pm. He was affected by alcohol and/or a drug to a degree. The offender then walked to the deceased’s home and entered the house. It is difficult to determine the extent of the offender’s intoxication, except to say that he was likely intoxicated and affected by a prohibited drug.
When the offender attended the deceased’s home, he intended to confront the deceased about the material he had seen on the mobile phone which he had stolen from the house. At that point in time, he did not intend to cause serious injury to the deceased. The Crown accepts that this is reasonably possible.
It is clear that at the time the ambulance arrived at about 11:10am on 12 March 2023, the power to the house had been switched off at the fuse box. I am unable to determine as to when the power was switched off or by whom. Some suspicion attaches to the offender; however, I am unable to make a finding beyond reasonable doubt. Further, it is unclear on the evidence as to whether the power to the house had been switched off prior to the offender attending the premises or upon leaving the premises. The fact that the power was switched off is not a matter that I take into account in assessing the objective seriousness of the offence.
Upon entry into the deceased’s home, there ensued a verbal argument between the offender and deceased which escalated to a physical altercation. During the altercation, the offender punched the deceased multiple times with his fists and stomped on him at least once. The deceased was rendered unconscious.
I find that the offender attended the premises to confront the deceased about the images found on the phone which he believed belonged to the deceased. I am not satisfied beyond reasonable doubt that at this point the offender intended to exact retribution on the deceased by taking the law into his own hands to punish a perceived wrongdoing. Instead, the verbal altercation quickly escalated into physical violence on the part of the offender.
Having assaulted the deceased in the manner described, the offender intended to cause grievous bodily harm to him. A subsequent post-mortem examination showed extensive bruising, abrasions, and lacerations to the head, face, neck, and torso of the deceased. Although there were no skull fractures present, there were fractures of the face and jaw. The extent of the injuries was indicative of a sustained and very violent assault involving numerous blows.
The offender left the house understanding that the deceased was unconscious and badly injured. The offender did not seek assistance for the deceased.
Whilst running in the opposite direction of the deceased’s home, the offender was seen by Ms Stoddard who thought the offender was “drunk” and “off his head”. The offender started screaming, saying, “I think I’ve killed someone”. The offender said, “If he’s still breathing he’s still alive isn’t he?”.
The offender told Ms Stoddard, “Shit I think I fucking killed someone” … “I think I killed this matey down here”. Ms Stoddard described the offender as “screaming and carrying on”.
The offender said, “I think I killed him...I went like that to his head (demonstrating a stomping action with one leg) ...I went bam (demonstrating a downward punch)”. The offender repeated, “I think I killed him”. He also said, “That bloke showed me pictures, kiddy porn... a dirty sick motherfucker...I just lost it”. Ms. Stoddard asked, “... where did this happen? Where is he? So me and babe can see if he is all right”, but the offender would not tell her anything. He said, “no, no, no”. Ms Stoddard said, “well you’re talking shit” and went to bed.
On 12 March 2023 at about 8:30am, the offender asked Ms Stoddard and her partner to provide an alibi for him, but they refused.
At about 11am on 12 March 2023, the deceased’s housemate, Mr Shorten, returned home and found the deceased on the floor. He called triple zero.
An ambulance arrived at about 11:10am. When an ambulance officer attempted to turn on a light just inside the front door it did not work. It appeared that none of the lights worked.
On the morning of 12 March 2023, the offender was seen by a number of people as being upset and crying, and saying, “I’m sorry” and “I fucked up”.
Mr Kilby handed himself in, at Peak Hill Police Station on 12 March 2023. He was observed to have a 40 mm laceration on his left forearm, as well as a 2 mm abrasion on his right middle knuckle.
The profound seriousness of the unlawful taking of another person’s life is well recognised. It is exemplified by the statutory guideposts, the maximum penalty of life imprisonment, and a standard non-parole period of 20 years’ imprisonment.
The crime of murder can be committed within a wide range of circumstances with differing gravity. In this case, the offence did not involve planning or organisation. The offender attended the deceased’s home to confront him. The verbal altercation quickly escalated into a physical assault on the deceased. To that extent it was an impulsive and unsophisticated offence.
The extent of the violence was, however, significant, involving multiple blows causing multiple injuries. I have also taken into account, as an aggravating factor, that the offence was committed in the home of the deceased where he was entitled to feel safe and secure.
There is evidence that the offender was intoxicated to some degree at the time he murdered the deceased. However, the extent of his intoxication and its impact on the offender’s conduct is uncertain.
The subjective material, which is comprehensively summarised below, establishes that the offender’s childhood was marred by disadvantage and deprivation. He commenced using prohibited drugs at a very young age and was exposed to drug usage in his extended family. There is a question as to whether his drug addiction and alcohol abuse is a product of free will or free choice.
However, given the uncertainty of the evidence as to the offender’s degree of intoxication and the manner in which it may have impacted upon his decision-making processes, this is not a matter where intoxication operates to mitigate the objective seriousness of the offence.
Clearly, the offender’s motivation was to confront the deceased about the images located on the mobile phone he had taken from the deceased’s home. That confrontation falls short of vigilantism. What followed was an escalation of violence, on the part of the offender, leading to the tragic death of the deceased.
I am satisfied that the offence falls below the middle of the range of objective seriousness but not at the lower end of that range.
Mr Kilby is an Aboriginal man born in Parkes, NSW. His parents separated when he was an infant and he remained in the care of his mother, having no contact with his father until he was about 13-14 years old. He re-connected with his father shortly before his father passed away from cirrhosis of the liver, due to substantial abuse of alcohol. The offender was 15-16 years old at the time his father died.
Growing up, Mr Kilby reported that his stepfather, although a good man who was always there for him, was heavy handed with corporal punishment, subjecting the offender to “floggings with a jug chord”.
Mr Kilby had a serious conduct disorder from an early age which placed a strain on his relationship with his mother and led to conflicts with his stepfather. In attempts to rectify his behavioural issues, Mr Kilby’s mother sent him to live with his aunt in Peak Hill.
During this time in Peak Hill, Mr Kilby was exposed to drugs and alcohol in the family home. There was no discipline or boundaries set.
This lack of structure was a catalyst for further destabilisation and Mr Kilby became transient between several locations. He gravitated towards negative peers and came into contact with the criminal justice system.
Although Mr Kilby never lost contact with his mother, the relationship became strained because of his antisocial lifestyle and his mother’s attempts to challenge his behaviour. He has five younger half siblings; most are described as well-adjusted and responsible adults. In 2023 he discovered that his uncle had sexually abused several of his family members, including his sister. He felt guilty that he had not been aware of the abuse and not been able to protect his sister. Tragically, she committed suicide on 20 October 2023, when the offender was in custody. He was unable to attend the funeral. There is no doubt that he has been deeply impacted by that loss.
Fortunately, Mr Kilby has been able to maintain a relationship with his mother, siblings, and children whilst in custody.
Mr Kilby’s formative years were marred by a heavy presence of serious substance use amongst extended family members. He started using prohibited substances at a young age, and this has been an ongoing problem for him throughout his life, destabilising him, and underpinning much of his prior criminal conduct.
The offender started smoking cannabis at 11-12 years old, quickly developing a daily habit. He started drinking alcohol at 14 years of age, initially binge drinking on weekends with peers, but escalating to daily consumption by the age of 16.
Mr Kilby started injecting amphetamine at 15 years of age. He transitioned to methylamphetamine around the age of 20. He started injecting heroin in his twenties, mostly as a means of coming down from methylamphetamine.
From 2009-2017, Mr Kilby lived in Queensland with his then partner. This was a period of relative stability largely resulting from prosocial influences, namely, through his partner’s family and their friends who lived conventional lives. His three children were born and raised in Queensland. The offender described the relationship with his partner during this time as “really good”.
However, this period was not entirely drug-free, perhaps unsurprisingly given the long and entrenched history of substance abuse. The offender and his partner experimented with methylamphetamine. They intended to try it “for fun”, but, in the words of the offender, it became “our biggest downfall”. The use of methylamphetamine escalated and their relationship broke down.
Mr Kilby returned to couch surfing and drinking and began injecting methylamphetamine daily. He returned to Bathurst when he was 33-34 years old, essentially having nowhere else to go. He stayed at his cousin’s house which he described as “basically a drug house”. He commenced using heroin and had little care about what would happen to him.
Mr Sheehan diagnosed Mr Kilby with Polysubstance Use Disorder.
Mr Kilby initially commenced the Buvidal program in custody in 2020. During this time, he continued to use non-prescribed buprenorphine intermittently and became quickly dependent on the substance in gaol. Upon exiting custody in late 2021, Mr Kilby ceased the program, returning to the abuse of cannabis, methylamphetamine, heroin, and alcohol. His recent admission into custody in 2023 reveals that he was using those substances just prior to the commission of the subject offence.
Since 19 September 2023, Mr Kilby has been consistently receiving Buvidal injections whilst in custody. This has supported him in abstaining from drug use in custody and managing his cravings over the past 12 months.
Mr Kilby attended multiple schools growing up as a result of living sporadically with family members in between Bathurst and Peak Hill.
Between years 7-9, he attended three different high schools. At each one he was subject to several suspensions due to behavioural concerns. This led to Mr Kilby exiting formal education altogether during ninth grade. Mr Sheehan stated that Mr Kilby described clear indicators of severe conduct disorder during childhood.
Mr Kilby first entered the work force at 17 years of age, in the labouring industry. His work was sporadic and often short lived. He started concreting in his mid-twenties and took a liking to this type of work. His employment has often been interrupted by his drug use and unstable lifestyle.
Mr Kilby maintained long-term employment as a concreter working for his brother-in-law. This was during the most stable period of his life, when he resided with his partner and children, and had access to pro-social peers.
Since entering custody, Mr Kilby has been placed in a working unit which has allowed him to engage in several courses and obtain employment as a welder, in ground maintenance, and in food services. He formally completed a Certificate II in Engineering through TAFE on 2 June 2025, while on remand. The fact that Mr Kilby has taken steps to complete these courses and work while an unclassified remand prisoner is demonstrative of his progress to date.
Between the ages of 15-16, the offender disclosed being subject to an act of penetrative sexual abuse by an adult male worker when he first entered juvenile detention at Acmena Youth Justice (“Acmena”). The offender could not acknowledge the event for many years, reportedly feeling ashamed and confused. Mr Kilby is currently engaged in legal proceedings, seeking recognition and compensation for the abuse he experienced at Acmena.
Mr Sheehan noted that Mr Kilby was deeply and negatively affected by this event. He described partial symptoms of Post Traumatic Stress Disorder (“PTSD”) but not the full requisite of symptoms required for a diagnosis. Mr Kilby’s maladjustment was well underway by the time he experienced this trauma, limiting the extent to which this can be seen to account for the destructive trajectory he has followed in his life. However, it was clear to Mr Sheehan that the trauma had aggravated his problems and further destabilised him.
The offender has a long history of unstable moods, being prone to periodic emotional collapse, hopelessness, and despair, usually precipitated by his unstable lifestyle, unstable relationships with others, or being unable to cope with challenging life events (bereavement and relationship failure). He reported periodic suicidal ideation in response to encountering hardship but has never thought seriously about killing himself. In Mr Sheehan’s view there is insufficient evidence to make a confident diagnosis of major depressive disorder, with Mr Kilby’s drug abuse obscuring a clear understanding of his mood.
The offender’s mood and optimism were good in 2024, bolstered by achieving remission from drugs, engaging in employment and training, becoming wing delegate, and improved relations with his loved ones. However, his mood has suffered in the months leading up to his sentencing. He has recently commenced another antidepressant medication.
Mr Sheehan opined that Mr Kilby’s history points towards a diagnosis of antisocial personality disorder, having developed from early conduct disorder, and following a pattern of disregard for and violation of the rights of others, with failure to work within rules or laws, marked impulsivity, irresponsibility, and failure to adjust his behaviour in response to sanction.
Mr Sheehan acknowledged that it would be realistically anticipated, however, that Mr Kilby’s antisocial behaviour would lessen over the following decade and beyond.
There is no dispute that the offender has experienced a childhood of deprivation and disadvantage. His drug and alcohol use commenced during his childhood which was marred by experiencing a heavy presence of serious substance use disorder in his extended family. This is the environment in which he spent his formative years and where the misuse of alcohol and prohibited drugs became normalised.
His background of disadvantage includes the serious trauma he experienced at the age of 15-16 years old. Although the symptoms described by the offender do not justify a diagnosis of PTSD, it was clear on assessment that the trauma experienced had aggravated his problems and further destabilised him and it was noted that the offender described clear indicators of severe conduct disorder during childhood.
I am satisfied that the offender’s background of deprivation and disadvantage operates to reduce his moral culpability: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Section 21A(3)(i) of the CSPA provides that the Court can take into account as a mitigating factor the remorse shown by the offender for the offence, but only if (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).
In an undated apology letter addressed to the Court, Mr Kilby expressed great sorrow and regret for his actions and the impact it has had on the family and friends of the deceased.
Mr Kilby extended his apology to his “little town and community” and to his own family and children, expressing a willingness to change and “be a better man”.
The offender told Mr Sheehan that “I had no right to take the mans’ life. I took someone’s son, brother, uncle, father away from them. I’m so remorseful for his family. I couldn’t imagine what it is like for his mother. There are heaps of people affected”.
Although his immediate reaction was self-preservation rather than remorse, it is noted that the offender handed himself into the police station the day following the killing (or on the day of the killing). He also pleaded guilty at the first opportunity.
I am satisfied that the offender is genuinely and deeply remorseful for his actions.
Following a period of instability when he first entered custody, the offender has made a genuine effort to rehabilitate. The following progress has been made:
On 6 June 2024, Mr Kilby enrolled in a Certificate II in Engineering course. The offender completed this course recently on 2 June 2025. Mr Kilby is hoping to commence formal qualifications as a Youth Worker after the completion of his sentence proceedings.
On 5 December 2024, Mr Kilby was appointed Aboriginal Delegate at Macquarie Correctional Centre. His primary role includes leading a yarning circle and supporting other Aboriginal and Torres Strait Islander inmates.
Mr Kilby led the NAIDOC events held at Macquarie Correctional Centre in October 2024. He was responsible for coordinating a small team of inmates to prepare food, artwork, and equipment. He was also given the responsibility of presenting Elders with paintings and gifts on behalf of the Correctional Centre. Corrective staff praised his leadership and described him as “extremely respectful”.
Mr Kilby also participated in the ‘Con Artists Exhibition’ hosted at Wellington Art Gallery in April 2024. Here, Mr Kilby painted and exhibited for sale eleven of his art pieces he completed at Macquarie Correctional Centre.
Mr Sheehan observed that after a poor start to his remand, the evidence is that the offender has made steps towards his rehabilitation since that time. Mr Sheehan noted positive steps including the recommencement of the Buvidal program, becoming the Aboriginal wing delegate, holding institutional employment, and completing the first year of a trade apprenticeship. The offender reported being in sustained remission from his substance use disorder and denied any gaol misconduct charges for at least the past year.
Mr Sheehan opined that although it might seem strange that Mr Kilby should find hope at this time in his life as he faces a murder sentence, it may be that the gravity of his offence is one of the factors that has leveraged his current efforts towards change.
The offender has made some real progress during his detention at Macquarie Correctional Centre. This progress is, in large part, due to an apparent resolve on his behalf to do better. It also appears to be a product of the supports, programs, and attitude which exists amongst those managing and running the Macquarie Correctional Centre.
This Court does not have the authority to order that the offender remain in a particular correctional facility. The classification of the offender is a matter entirely for Corrective Services. However, given the progress made by the offender at Macquarie Correctional Centre, the Court recommends that serious consideration be given to allow him to serve his sentence, for as long as possible, at this Facility.
The offender’s prospects of rehabilitation and likelihood of reoffending are difficult to predict. His long standing and entrenched substance abuse issues, together with trauma resulting from his childhood experiences, and his background of deprivation, are factors militating against a positive finding in respect of his prospects of rehabilitation. He has a criminal record and was on bail when he committed this offence. These are matters that would justify a finding that his prospects of rehabilitation are guarded. I have also had regard to the fact that the conditional liberty is an aggravating factor.
However, there is cause for hope. The offender is genuinely remorseful for his actions. He has demonstrated a capacity to engage in constructive programs and demonstrated leadership qualities whilst in custody. If he continues on this trajectory, his prospects of rehabilitation upon release are positive and there would be little risk of reoffending.
Much will depend upon whether Mr Kilby continues to engage positively and constructively in custody.
3A Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows—
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences,
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community.
“Section 3A, in setting out the various purposes of sentencing, does not identify a single overarching purpose, neither does it identify a primary purpose or establish any priority among the various purposes. In particular, it reflects the necessity to reconcile and rationalise the s 3A purposes in considering the sentence appropriate to the particular offence. I must engage in a process of “instinctive synthesis” which takes account of and balances the “conflicting and contradictory” factors which bear upon the sentencing exercise: see R v MA [2004] NSWCCA 92 at [23]; R v King [2004] NSWCCA 444 at [130]; R v MMK [2006] NSWCCA 272 at [10]; R v Burns (No 2) [2022] NSWSC 140 (Burns (No 2)) at [64].”
The offender’s reduced moral culpability is a factor I have taken into account in reducing the weight to be afforded to denunciation. The offender’s background also operates to reduce the weight that would otherwise have been afforded to general deterrence. Notwithstanding that reduction, however, general deterrence is a relevant consideration given the nature and extent of the violence perpetrated against the deceased.
The mitigatory impact of the offender’s background is relevant to the determination of a proportionate sentence which warrants a reduction in the otherwise appropriate sentence for an offence of this type. There are however countervailing factors. Specific deterrence remains a weighty consideration.
Although the offender does not have an extensive criminal record for matters of violence, he has come before the court on multiple occasions for offences of dishonesty. He committed the present offence one day after he was released to bail on a domestic violence related allegation. He was consequently convicted in his absence for that assault.
The protection of the community is also a relevant consideration, although I am mindful that it is only by facilitating the offender’s rehabilitation in a meaningful way that the protection of the community is truly enhanced.
In addition, the offender must be punished for his actions and held to account.
The nature and circumstances of the offence warrant a term of full-time imprisonment of some length. Both the maximum penalty and the standard non-parole period are important statutory guideposts in determining the proportionate sentence.
I intend to depart from the standard non-parole period. I do so because the offender pleaded guilty at the first opportunity and the offence falls below the middle of the range of objective seriousness.
Although the duration of the sentence will allow for a lengthy period of parole, I am satisfied that special circumstances exist, warranting some variation of the statutory ratio. I make that finding because the offender will require a longer than usual additional term to assist him in readjusting to life in the community, particularly, with housing and employment.
A lengthier period on parole is also justified to allow Mr Kilby to participate in lengthy and intensive community-based rehabilitation to reduce the risk of reoffending, thereby protecting the community.
Mr Kilby was arrested on 12 March 2023 and has remained bail refused since that date. In November 2022, Mr Kilby and two other associates attended Bathurst Repco where he hid a battery charger, valued at $413, in his hooded jumper and exited the store without paying.
On 5 July 2023, he was sentenced at Bathurst Local Court for the offence of shoplifting. Mr Kilby received a fixed term of imprisonment of 6 months, commencing on 12 March 2023 and expiring on 11 September 2023.
This Court has a broad discretion under s 47(2) of the CSPA in relation to backdating a sentence: see Edquist-Wheeler v R [2024] NSWCCA 49 at [43] (per Sweeney J, Adamson JA and Lonergan J agreeing); Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58 at [21]-[23] (per Simpson J, James and Hall JJ agreeing); Martino v The King [2024] NSWCCA 93 at [79] (per Chen J, Harrison CJ at CL and Walton J agreeing); Mattiussi v R [2023] NSWCCA 289 at [49] (per R A Hulme AJ, Adamson JA and Button J agreeing).
Most recently, in Wilson v R [2025] NSWCCA 86, Dhanji J at [33] (with whom Adamson JA and Weinstein J agreed) reiterated that where an offender’s custody is referable both to the present offence/s and the earlier sentence, a sentencing judge has a broad discretion as to whether to backdate a sentence, and if so, the extent to which it should be backdated.
I exercise my discretion to commence the sentence on 12 March 2023. I do so because the larceny offence is at the lowest end of the range of objective seriousness and Mr Kilby has been on remand for the subject offence since 12 March 2023.
I have been provided with four comparative cases involving killings occasioned by the infliction of multiple injuries where the intention was to cause grievous bodily harm. The cases reveal head sentences of between 21 years and 18 years’ imprisonment, with a non-parole period ranging from 12 years to 15 years and 9 months’ imprisonment.
In R v Smith [2024] NSWSC 437, the incident arose from a deep personal animosity between the offender and deceased, both of whom, at times, had been in a relationship with the same person. The killing was occasioned by way of a fatal stab wound to the chest. The stabbing occurred in the context of an altercation. The offender handed himself in to police approximately six days after the killing.
The offender was sentenced on the basis that he intended to cause grievous bodily harm. He was on conditional liberty for domestic violence offences. He had a prior criminal record for personal and domestic violence. A level of provocation in the context of ongoing animosity between the offender and the deceased was taken into account. The offence was assessed as just below the middle of the range of objective seriousness.
The offender was a 39-year-old Aboriginal man with a deprived and disadvantaged background. He was diagnosed with antisocial personality disorder, depression, anxiety, and insomnia. A discount of 12.5% was applied for the facilitation of the administration of justice during the trial.
The offender was sentenced to 20 years’ imprisonment, with a non-parole period of 15 years’ imprisonment.
In R v Doolan [2023] NSWSC 821, the offender was sentenced following a finding of guilt at trial to a period of 18 years’ imprisonment with a non-parole term of 12 years’ imprisonment. The offender and deceased were known to each other.
The offender was drinking alcohol with a number of friends on the night leading up to the murder. He returned to his mother’s home where the deceased was staying. The offender punched the deceased multiple times in the head. The deceased attempted to leave the premises when the offender punched him and stomped on his head.
There was no evidence of pre-planning. The attack was prolonged and violent but delivered without an intention to kill.
The offender was assessed as having a depressive illness in remission and a substance use disorder in long-term remission. He was deemed to be at risk of further episodes of clinically significant depression. The offender had a strong work history and regular contact with his children. Corrective Services records revealed that the offender demonstrated a high level of cooperation in custody. He was assessed as having excellent prospects of rehabilitation.
In R v Chatimba (No 2) [2021] NSWSC 863, the offender stabbed the deceased six times during an altercation, resulting in his death. The offender was sentenced on the basis of having an intention to inflict serious bodily harm. The objective seriousness was “somewhat below the middle of the range”.
The offender had experienced a disadvantaged childhood. He was diagnosed with PTSD. He had prior good character with a very limited criminal record. He was assessed as having good prospects of rehabilitation and had demonstrated remorse. No discount applied because the offender was found guilty of murder after trial. He was sentenced to 21 years’ imprisonment with a non-parole period of 15 years and 9 months’ imprisonment.
In R v Washbrook [2019] NSWSC 1143, the offender and deceased were good friends. During an argument, the offender lost his temper and struck the deceased with a piece of wood 2-3 times. The deceased sustained substantial blunt force trauma to the head, torso, and arms.
The offender was sentenced on the basis that he intended to cause grievous bodily harm to the deceased. The offence did not involve planning or premeditation. The offence was committed in the deceased’s home and whilst the offender was subject to conditional liberty. The offence was assessed to be objectively serious.
The offender was 42 years old at the time of the offence. He had a chronic and evolving history of substance abuse from the age of 14-15 years. Following a discount of 25% to reflect the utilitarian value of the plea of guilty, the offender was sentenced to 18 years’ imprisonment with a non-parole period of 13 years and 6 months’ imprisonment.
I have taken into account the comparative cases in so far as they provide some assistance in determining the proportionate sentence. However, I am mindful that no two cases are identical and that distinguishing factors, both favourable and unfavourable to this offender, exist.
Taking into account all the matters referred to above and applying a 25% discount, I make the following orders:
Mr Roger Kilby is convicted.
Mr Kilby is sentenced to a non-parole period of 12 years and 6 months’ imprisonment commencing on 12 March 2023, with an additional term of 5 years and 6 months’ imprisonment. The total term is 18 years’ imprisonment. The date upon which Mr Kilby is first eligible to be released on parole is 11 September 2035.
Roger Kilby, the offence of murder is a “serious violence offence” as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW). I am obliged by s 25C of that Act to advise you of the existence of that legislation and its application to the offence you have committed.
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R
Kilby
(2013) 249 CLR 571