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District Court 12 March 2021

R v Kirk

[2021] NSWDC 389

Assault & violence
EXPOSURE TO DISADVANTAGE SEXUAL ABUSE VIOLENCE REHABILITATION CULTURALLY APPROPRIATE REHABILITATION BARKINDJI COMMUNITY

Citation: R v Kirk [2021] NSWDC 389
Court: District Court of New South Wales
Date: 12 March 2021
Judge: DCJ Beckett

Background

The offender, a 25-year-old Barkindji woman from Broken Hill, appeared for sentencing on one count of aggravated assault with intent to rob and inflict actual bodily harm under s 95(1) of the Crimes Act 1900 (NSW). A related offence of assaulting a police officer in the execution of duty was attached on a Form 1.

On 24 March 2020, the offender entered a bakery in Mount Druitt after it had closed for the day, pushed the victim twice in the chest, then punched her in the face with a closed fist while demanding money. The victim sustained a bleeding and swollen lip, a swollen nose and a swollen cheek. The offender left without obtaining any money and was located by police at a nearby railway station. While being arrested, she spat on a police officer's trousers.

The offender had spent a total of approximately 7 months and 21 days in pre-sentence custody referable to the principal offence (excluding time served on an unrelated parole matter). She entered a plea of guilty, attracting a 25% utilitarian discount.

  • How objectively serious was the s 95(1) offending, and how should the Henry guideline judgment apply where no weapon was used?
  • What weight should be given to the offender's significant background of trauma, childhood sexual abuse, domestic violence, and exposure to disadvantage as an Aboriginal woman?
  • Whether a community-based sentence, specifically an Intensive Corrections Order (ICO), was appropriate given the offender's rehabilitation prospects and community safety considerations.
  • Whether an ICO could be imposed without a Sentencing Assessment Report, where other Correctives and Justice Health material was before the court.

Decision

DCJ Beckett assessed the offending as falling below the middle of the range of objective seriousness for s 95(1) offences, but not at the lowest end. The assault involved actual physical violence to the face without warning or provocation, and the victim was alone and vulnerable in a closed store. Mitigating factors included the absence of a weapon, the spontaneous and unplanned nature of the offending, the brief duration of the incident, and the offender's heavily intoxicated state, which was noted not as mitigation but as explanatory of the offence's lack of sophistication.

On the Form 1 offence, the court treated spitting on a police officer as a particularly unpleasant and, in the then-current public health environment, dangerous act warranting general deterrence and denunciation in the sentencing calculus.

The offender's subjective case was marked by profound disadvantage. She had experienced childhood sexual abuse from the age of four or five, witnessed domestic violence, been exposed to alcohol abuse, and carried the compounding effects of intergenerational trauma as a Barkindji woman. The court applied the principles in Bugmy v The Queen [2013] HCA 37, which recognise that deep-seated disadvantage of this kind does not diminish in its mitigatory weight simply because an offender has re-offended.

The court was satisfied that releasing the offender into the community under an ICO, with culturally appropriate supports including Aboriginal health and drug and alcohol services, her mother's supervision, and engagement with nursing family partnership programs, was more likely to address her criminogenic needs and protect community safety than continued full-time detention. Although no Sentencing Assessment Report had been prepared despite one being requested, the court found that the volume of Justice Health and Correctives material before it was sufficient to justify the making of an ICO under s 17D(1A) of the Crimes (Sentencing Procedure) Act 1999.

Orders Made

  • The offender was convicted.
  • Sentenced to 15 months imprisonment, to be served by way of an Intensive Corrections Order, commencing 12 March 2021 and expiring 11 June 2022.
  • Standard ICO conditions applied: no further offending; supervision by a Community Corrections officer at Penrith Community Corrections Office; contact within 3 days of release.
  • Additional conditions:
  • Reside with her mother at the specified address or any other address approved by Community Corrections.
  • Abstain from drugs and alcohol for the duration of the order and comply with testing.
  • Accept referrals for psychological assessment and counselling.
  • Engage with the Australian Nursing Family Partnership Program.
  • Engage with Marrin Weejali for drug and alcohol counselling, or any other organisation recommended by Community Corrections.

Key Takeaways

  • The District Court confirmed that the R v Henry guideline judgment remains a relevant reference point for s 95(1) offences, but must be applied with caution where no weapon is involved, and that a 4-5 year starting point is not to be adopted as a prima facie default.
  • Under Manze v R, where a s 95 robbery is already aggravated by actual violence, that same violence cannot be counted again as a statutory aggravating factor under s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 without impermissible double counting.
  • Consistent with Bugmy v The Queen, the profound and compounding effects of trauma, disadvantage, and exposure to violence in an Aboriginal offender's background retain genuine mitigatory significance at sentencing, even where the offender has prior convictions.
  • An ICO may be imposed without a formal Sentencing Assessment Report where, under s 17D(1A), the court is satisfied that sufficient alternative material, such as Justice Health records and other Correctives documentation, justifies the order.
  • The availability of culturally appropriate rehabilitation supports, including Aboriginal community health services and family oversight, was a material factor in the court's assessment that an ICO better served both the offender's rehabilitation and community safety than full-time custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 95(1), 58
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 17D(1A), 21A(2)(b), 66(1), 66(2), 67(1), 67(2)

Cases
- Azzi v R [2008] NSWCCA 169
- Bugmy v The Queen [2013] HCA 37
- Manze v R [2006] NSWCCA 36
- R v Forsythe [2020] NSWDC 99
- R v Henry (1999) 46 NSWLR 346
- R v Millwood [2012] NSWCCA 2
- R v Perkins [2018] NSWCCA 62
- R v Tortell [2007] NSWCCA 313
- Wong v The Queen (2001) 207 CLR 584