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Court of Criminal Appeal 4 October 2000

Regina v Kim Duke

[2000] NSWCCA 403

Assault & violenceTheft & propertyFirearms & weapons
CRIMINAL LAW SENTENCE EXCEPTIONAL CASE WHETHER FULL TIME CUSTODIAL SENTENCE INEVITABLE

Citation: Regina v Kim Duke [2000] NSWCCA 403
Court: New South Wales Court of Criminal Appeal
Date: 4 October 2000
Judge(s): Simpson J, Hidden J

Background

The applicant pleaded guilty in the District Court to three charges arising from a single incident at a Penrith Plaza department store in June 1999: using an offensive weapon with intent to prevent lawful apprehension (under s 33B of the Crimes Act 1900), common assault, and larceny. After stealing household goods worth less than $200, she used what appeared to be a homemade taser device on two security staff members who were attempting to detain her, causing one to suffer puncture wounds, nausea, and dizziness.

The District Court sentenced the applicant to two years imprisonment with a nine-month non-parole period on the primary charge. Knight DCJ acknowledged the applicant's difficult personal circumstances, including a history of domestic violence, drug and alcohol dependency, and the welfare needs of her young children, but concluded that the seriousness of the offence and the need for general deterrence made full-time custody unavoidable. He rejected periodic detention, stating he would be "weakly merciful" to impose anything less.

The applicant sought leave to appeal that sentence, arguing the District Court erred by treating a full-time custodial term as the only available option.

  • Whether the sentencing judge erred by treating full-time custody as the only available sentencing option, thereby excluding periodic detention from consideration
  • Whether the personal circumstances of the applicant, including domestic violence, drug dependency, history of abuse, and the welfare of young children, warranted a non-custodial alternative
  • Whether the sentence imposed fell outside the available range of sentences appropriate for the offence

Decision

The Court of Criminal Appeal found that the sentencing judge had fallen into error by categorically excluding periodic detention as an option. Although offences under s 33B are rightly viewed as serious, and this Court had previously confirmed that deterrence is an important sentencing consideration for such offences, the existence of significant mitigating factors meant the case was not one where full-time custody was inevitable.

The Court accepted the applicant's substantial mitigating circumstances: an early guilty plea, a prior record of little or no relevance, no previous term of imprisonment, a troubled personal history marked by childhood abuse and two violent domestic relationships, acute drug and alcohol intoxication on the day of the offence (partly linked to a serious assault by her partner that same day), and credible evidence of rehabilitation. A clinical psychologist's report noted she had ceased drug use, resumed caring for her young children, and had ended the abusive relationship.

The Court emphasised that a sentencing judge is not required in every case to explicitly define the full range of available sentences. However, where a judge actively excludes an available option from consideration, that constitutes a sentencing error. That error was made here, and the Court proceeded to resentence the applicant accordingly.

Taking into account the time the applicant had already served in full-time custody, the Court determined that justice was best served by maintaining the term of imprisonment but directing it be served by way of periodic detention.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by the District Court on the s 33B charge quashed
  • Substituted sentence of one year and eight months imprisonment, with a non-parole period of five months, dating from 13 October 2000, to be served by way of periodic detention at the Norma Parker Periodic Detention Centre
  • Parole subject to supervision and guidance of the Probation and Parole Service for such period as that Service considers appropriate
  • Applicant's counsel directed to provide the explanation required by s 71 of the Crimes (Sentencing Procedure) Act 1999
  • Registry directed to fax relevant notices to the institution holding the applicant

Key Takeaways

  • A sentencing judge who categorically excludes an available sentencing option from consideration commits a sentencing error, even where the offence is a serious one attracting deterrence-based reasoning.
  • The Court of Criminal Appeal confirmed that offences of using an offensive weapon to resist lawful apprehension are treated seriously and general deterrence is a legitimate sentencing consideration, consistent with prior decisions including R v Hamilton, R v Carter, and R v Bazzi.
  • Significant mitigating circumstances, including a history of family violence, acute intoxication linked to a domestic assault on the day of the offending, an early guilty plea, no prior imprisonment, and credible evidence of rehabilitation, can collectively take a case outside the range where full-time custody is the only appropriate outcome.
  • Where a sentencing error is established, the Court of Criminal Appeal will resentence and may substitute periodic detention even after the applicant has already served a period of full-time custody.
  • The welfare needs of young children, while not determinative, formed part of the sentencing court's assessment of special circumstances and of the overall appropriateness of the substituted sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 33B (using an offensive weapon with intent to prevent lawful apprehension)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 71, 72

Cases
- R v Hamilton (1993) 66 A Crim R 575
- R v Carter (CCA, unreported, 29 October 1997)
- R v Bazzi [1999] NSWCCA 346