R v Kirk [2021] NSWDC 389

District Court New South Wales

Medium Neutral Citation: R v Kirk [2021] NSWDC 389 Hearing dates: 29 January 2021 Date of orders: 12 March 2021 Decision date: 12 March 2021 Jurisdiction: Criminal Before: DCJ Beckett Decision: See paragraph [62]-[66] Catchwords: CRIME — violent offences — assault with intent to rob – exposure to disadvantage – sexual abuse – violence – rehabilitation – culturally appropriate rehabilitation – Barkindji community Legislation Cited: Crimes Act 1900 (NSW) s 95(1), s 58 Crimes (Sentencing procedure) Act 1999, s 21A(2)(b), s 66(1); (2), s 67(1);(2), s 17D(1A) Cases Cited: 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 (2001) 207 CLR 584 Category: Sentence Parties: Regina (Crown) Kirk (Offender) Representation: Crown: Ms Tam, ODDP Offender: Ms Hackett, Solicitor ALS File Number(s): 2018/71829

Judgment 1. The offender Janine Kirk comes before the court in respect of one offence of aggravated assault with intent to rob and inflict actual bodily harm pursuant to s 95(1) of the Crimes Act 1900 (NSW) ("Crimes Act") committed on 24 March 2020. The applicable maximum penalty is 20 years and there is no standard non-parole period attached. 2. Attached to the offence on a Form 1 is an offence of assault officer in execution of duty pursuant to section 58 of the Crimes Act carrying a maximum penalty of five years. That offence was committed on the same day as the principal offence. 3. The offender was committed for sentence from the Penrith Local Court on 18 September 2020. 4. The offender was arrested on 24 March 2020. She was released to bail on 7 July 2020 and bail was revoked on 20 July 2020. As at 11 March 2021 she has spent 343 days or 11 months and one week in custody since her arrest comprising the following periods (between 24/03/2020 – 07/07/2020; 20/07/20 – 12/03/21). The offender's bail was revoked on 20 July 2020 due to the commission of further offences (namely the offence of carried in conveyance taken without consent of owner). The offender has served the balance of her parole in respect of earlier offences (between 24/03/2020 – 07/07/2020) concerning two unrelated offences of assault officer and an offence of assault occasioning actual bodily harm. 5. In total, the appellant has been in custody in respect of this matter alone for a period of 7 months and 21 days (namely between 20/07/20 and 12/03/21). 6. The matter was initially listed before me on 29 January 2021. There was no Sentencing Assessment Report prepared on that day and the matter was adjourned until today for sentence. Records from Justice Health were sought.