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 She was released to bail on 7 July 2020 and bail was revoked on 20 July 2020.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 The offender's bail was revoked on 20 July 2020 due to the commission of further offences (namely the offence of carried in conveyance taken without consent of owner).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. Facts 1. The facts on sentence indicate that on 24 March 2020 the victim, an employee of Red Brother's Bakery in Mount Druitt, was working alone at the bakery. At about 5:30 pm the victim closed the store but left the security door open whilst closing an internal door attached to the front counter and placing a large bread cutter behind it in order to prevent members of the public from entering behind the counter. The victim then cleaned and packed away goods from within the store. 2. At about 5:40 pm as the victim was still cleaning, the offender approached the bakery and kicked open the small entrance door before entering behind the front counter. The offender immediately pushed the victim twice to the chest. The offender then used her left arm to push the victim away before she hit the victim with a closed fist to the face, all of which was captured on CCTV footage. 3. Whilst assaulting the victim the offender yelled "give me the money, give me the money" before leaving the store and walking to the Mount Druitt railway station. The offender was captured on CCTV footage at the station during which it can be seen that the offender was wearing the same clothing as she had worn during the assault. 4. As a result of the assault the victim sustained a swollen and cut lip which was bleeding for about 30 minutes, a swollen nose and a swollen cheek. The victim declined assistance from paramedics simply placing an ice block on her lip to reduce swelling. 5. In respect of the Form offence the police arrived at Mount Druitt railway station shortly after the principal offence had been reported. The offender was located by police on the platform and placed under arrest. She was described as intoxicated and uncooperative. Once the offender was placed in handcuffs she spat saliva towards Constable Norris, which landed on the left leg of his pants. 6. The offender was conveyed to Mount Druitt police station however she was shortly thereafter referred for treatment and a mental health assessment as she was acting aggressively and appeared to be highly affected by drugs and/or alcohol before being placed into custody. Sentencing principles for s 95(1) Crimes Act offences 1. The court in Azzi v R [2008] NSWCCA 169 at [37] accepted that the guideline judgement of R v Henry (1999) 46 NSWLR 346 ("Henry") is a "relevant reference point" in sentencing offences contrary to s 95 of the Crimes Act. However, because Henry considers a circumstance where a weapon is used, the use of the armed robbery guideline must be approached with caution: R v Tortell [2007] NSWCCA 313 at [14]. Henry, also involved a late plea of guilty. The sentencing judge must not adopt a term of imprisonment of 4 – 5 years as a prima facie starting point, even when all of the characteristics set out (at 162) of the guideline judgement are satisfied (apart from the characteristic that the offender was armed). 2. Where the s 95 robbery offence is based on conduct consisting of the threat of violence, it is impermissible to apply s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A") and take into account any actual violence without double counting: Manze v R [2006] NSWCCA 36 at [26]. 3. In assessing the objective seriousness of the offending in respect of each offence of aggravated robbery pursuant to s 95 (1) of the Crimes Act, the whole of the circumstances have to be taken into account, including the nature and extent of the corporal violence which was the aggravating factor in each case: R v Forsythe [2020] NSWDC 99 (9 April 2020) at [68]. Objective seriousness 1. The offending included the actual infliction of violence as opposed to the threat of it, inflicted to the face and without warning or provocation. The assault to the victim included being pushed twice to the chest and being punched with a closed fist to the face resulting in visible injuries including a swollen and cut lip which was reported to have bled for 30 minutes resulting in also a swollen nose and cheek. 2. I note that no weapon was used. 3. I note that the victim was alone in the shop, having closed trade for that day. She was therefore in a reasonably vulnerable situation clearly having the day's takings on the premises and attending to cleaning duties. However the event was witnessed by members of the public within close vicinity of the shop. 4. I note that the matter involved a single victim. 5. I note that the offending appeared spontaneous, unplanned and was of brief duration. Ms Kirk was clearly heavily intoxicated which whilst not mitigating indicates is indicative of its lack of sophistication with the offender making no attempt to disguise herself and leaving the premises with no funds. 6. I find that the offending falls below the middle of the range but certainly not at the lowest end. 7. In respect of the matter to be dealt with on the Form, I take into consideration that spitting on a police officer is a particularly unpleasant and, in the current environment, dangerous act. It was done with disregard for public safety, and would have caused some concern to the officer. Offending of this kind calls for general deterrence and denunciation over and above other acts of assault upon officers who are acting in the execution of their duty. Aggravating features 1. In considering the section 21A(2) C(SP) Act: I take into account that the offence involved actual violence which I have noted above in the assessment of objective seriousness of the offence and do not doubly count. I note that no weapon was involved. 2. I note that the offender has a limited criminal record, however it involves offences of violence for which she later received gaol terms, having committed those offences only a few months before the commission of these offences. She was on bail in respect of these matters at the time of the subject offences which forms another aggravating feature. However in all other respects her record is limited. The first time she has spent time in custody has been in the last year. I do not find that her record is such that it disentitles her to leniency. Subjective Features 1. The offender is a 25 year old Barkindji woman, from far north-west NSW, born in Broken Hill. Tendered on sentence is a reference from Mel Jones Aboriginal Justice Health Worker at a Nowra Community organisation called Waminda; a report from Justice Health from Finbarr O'Neill from the Substance Use in Pregnancy Program; a letter from Allyra Hulme of Australian Nurse-Family Partnership Program; and Justice Health records concerning the treatment Ms Kirk has received since she has been in custody and received medical attention and treatment. 2. Ms Kirk was assessed by forensic psychologist Emma Hubner on 14 December 2020 at the Dillwynia Correctional Centre. 3. The background is set out by the psychologist which indicates that her young life has been marred by trauma and exposure to disadvantage in a myriad of forms. She was one of three children born to her parents, but exposed to domestic violence and sexual abuse in her early childhood. She said that from the age of four or five years she was sexually assaulted by an older male cousin which went undisclosed for many years. She witnessed alcohol abuse and domestic violence within her own home including witnessing her mother stab her father to death when she was six years of age. Remarkably, she thereafter appeared to have a stable period of time living with her aunt and grandmother, whilst her mother went on to have a period of instability with continued alcohol and drug abuse, forming of a new relationship and a move to Rooty Hill. Her stepfather passed away five years ago. 4. Ms Kirk has had two children, the first being still born at the age of 19 years. Following the death of her first child she commenced cannabis and ice use. Ms Kirk gave birth to her second child, currently now three years old, who was taken into care by her aunty and resides currently in Broken Hill. 5. Thereafter Ms Kirk's reliance on cannabis and ice is reported to have escalated, resulting in periods of homelessness with her then partner, with whom she shared drugs on a daily basis. 6. Despite these various forms of disadvantage the offender is described as having a tight family and kinship group which includes siblings, maternal grandmothers, aunts and close friends who she says remain supportive and invested in her well-being. It is reported that she is in regular written correspondence in particular with her mother. 7. The psychologist however indicates that Ms Kirk has a number of troubling mental health issues likely derived from her exposure to the multiple forms of disadvantage set out above. The psychologist report refers to the offender disclosing episodes of self-harm during periods of her adolescence including references in particular to cutting herself, punching her legs and face during periods of heightened emotional distress. I note that the issue of self-harm appears to be ongoing and is referenced in the Justice Health records. The psychologist made reference to the offender having been diagnosed with depression and being placed at some stage on anti-depressant medication. 8. The psychologist made reference to Ms Kirk's willingness to participate in treatment, including drug and alcohol sessions, having expressed a desire to remain abstinent from drugs in custody so that she could "settle down" and "properly mother her children". 9. The psychologist referred to Ms Kirk expressing remorse for her conduct stating "I was too blind to know what I was doing, I was skyhigh and didn't feel anything". She said in response to a question concerning her motives for the offending "I was in a shitty mood and took it out on the wrong people" stating that she was ashamed of herself and wanted to apologise. 10. The psychologist administered various psychometric personality tests and scales. Severe personality pathology was identified. The psychologist noted her exposure to multiple deleterious factors in childhood but also noted her period of stability provided by her extended family which allowed her to progress through early adolescence without cause for concern. 11. The psychologist opined that an ingrained personality pathology resulted from the ongoing exposure to negative peers perpetuated by her drug use which increased her propensity to offend. She opined that at the time of the offending she was suffering from emotional dysregulation and polysubstance dependence, having possessed cluster B and C personality types. 12. The psychologist noted that Ms Kirk however had positively acknowledged serious problems within her life and the need for help in dealing with them. She was reported as having a positive attitude towards personal change, was willing to attend targeted specific psychological intervention. She also had the ongoing support of her family and kinship group which were protective factors against recidivism. 13. The psychologist said she needed individual counselling making reference to a number of programs (none of which I note appear to be indigenous specific, nor necessarily culturally appropriate). 14. The evidence indicates that Ms Kirk is pregnant, at 37/40 weeks gestation with an expected due date of 1 April 2021. This is her third pregnancy. 15. Her Justice Health records indicates that she has a history of drug use and some of drug induced psychosis but she is not described as having any history of mental illness. She is described as currently mentally stable. She is reported as "positive about the pregnancy". 16. She has been in custody as stated for a consistent period of 8 months with 11 months of custody in the last 12 months. She has been incarcerated most recently at Dillwynia. She has completed an addiction's course. She has undertaken a comprehensive assessment and participated in the Substance use in Pregnancy Program in custody and has been engaging with the Waminda Program which is a service directed at the holistic approach to health and well-being for Aboriginal women and their families. Justice Health has corroborated that Ms Kirk's mother Patricia Kelly who resides at Rooty Hill is supportive and is content to have her reside with her. 17. Since being in custody the Nurse Family Partnership Program has engaged with Ms Kirk and have offered her referral to that program which provides home visits and general support and education for the duration of the first two years of the child's life. 18. Patricia Kelly, Ms Kirk's mother, also a Barkindji woman gave evidence. She confirmed the details of the background events set out by her daughter's account as recounted by the psychologist, including herself being charged with the murder of the offender's father, going to trial and being acquitted in the context of her extensive exposure to domestic violence. She corroborated that her life too had been marred by alcohol abuse but that since moving to Sydney she had obtained stable accommodation, had 4 to 5 years of abstinence and is now in stable employment. She resides with Colin Wyman describing it as a stable relationship. She does not tolerate drug use and said it had caused friction in her relationship with her daughter leading up to the offending. 19. She said that she had maintained consistent contact with her daughter whilst she has been in custody, even in the challenging COVID environment. She said that she was there "24/7" for her daughter and would make sure that she liaised with the various services that would be involved in her care on release. 20. Ms Kirk gave evidence via AVL. She confirmed the contents of much of the psychological report. She stated that she had never had any counselling in respect of the various exposures to violence and abuse. She said that she recognised she needed it. She said also she has not received any counselling for the loss of her first child. She said that she cried a lot after that event. She said that the drug use helped her deal with it at least in the short term. She said that she had found it difficult to cope with her second child who at 6 months was given to her aunty. She said she felt that it may have not been a good decision for herself personally as it allowed her to return to drugs but stated that she appreciated it was the best for the child who was being raised in a stable and happy family environment. 21. She gave evidence that at the time she committed the offence she was not staying at her mother's house as she was staying with a friend and taking drugs. She had fallen out with her mother because of her return to drug use. She said she didn't care about herself at the time. She expressed remorse for her actions and the victim and appreciated that she would have been frightened. She said she was sorry. She said she remembered the incident with the officer and the spitting describing her conduct as appalling and disgusting and appreciated that he was just trying to do his job. 22. She said that she was due to have her child within 2 weeks. She said that the time in custody had been stressful with various "dramas" amongst the inmates. She said she has tried hard to keep her baby healthy and was just trying to complete courses which she said she found really useful and had repeated some of them. She said she had been linked with a number of courses on the "outside" including parenting courses and hoped for reconnection with her elder daughter. She said she was focused on staying off the drugs and being a mother. 23. She said she planned to live with her mother but would be waiting for priority housing for her and her children. She said that she was engaging with services to help her with housing long term, drug use and counselling and getting her licence back. Mitigating factors 1. I take into account the following mitigating factors under s 21A(2) C(SP)A: I accept the offence was not part of a planned or organised criminal activity; I accept the offender has no significant record of previous convictions (in the sense that whilst the offender has a serious record, it is a very short one). I accept that Ms Kirk has expressed remorse both to the psychologist and also before the court. I note she has expressed a willingness to participate in various programs as evidenced in her participation in programs within Corrections and a willingness to continue to participate in Indigenous programs in the community. 2. I accept that the offender's prospects of rehabilitation remain to be tested within the community. However, I accept that recent research and expert opinion indicates that rehabilitation services provided by Indigenous and culturally appropriate organisations, who understand and acknowledge the trauma suffered by Indigenous communities as a result of general removal, segregation and discrimination, together with the support of her close family and community, provide the offender with the best chance of being rehabilitated. These facilities, with oversight by Community Corrections offer a protective measure both for the individual but also the community. 3. I accept that her family and kinship network are on the whole a pro-social support for her, noting her aunty has consistently had the care of her child. Most significantly the work done by Ms Kirk within the custodial situation is impressive. The records indicate that her attitude has improved significantly. She is reported to be happy about her pregnancy and has taken her pregnancy seriously by embracing all the assistance and guidance offered to her. In the evidence before the court, and contrary to what might be expected from her early life experiences, she presents not as a broken person but as a strong and intelligent woman who clearly has work to do on her mental health and drug use, but nonetheless has insight into her criminogenic weaknesses and need for assistance. I was most impressed by her evidence and the strength and resilience of her supporting network most particularly her mother. With these various organisations helping, supporting and monitoring her I am prepared to make a cautious finding that she has reasonably good prospects of rehabilitation. I cannot however make a positive finding that she is unlikely to reoffend. Other matters 1. I take into account that the offender's background in two ways. Firstly, it impacts upon the assessment of her moral culpability for her offending which I find is diminished as a result of her background of disadvantage including her history of exposure to extreme domestic violence and alcohol abuse; sexual abuse and later teenage pregnancy and loss of a child, which I am satisfied made her vulnerable to exposure to, and use of drugs, from a young age. 2. Secondly, I find that the combined evidence of her background, including that provided by the psychologist, means that the offender was less able to regulate her behaviour and emotions because of her underlying psychopathology derived from those early experiences in the context of drug dependency. As was recognised by Simpson J in R v Millwood [2012] NSWCCA 2: 1. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a "normal" or "advantaged" upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his or her behavioural decisions. 1. These sentiments were re-iterated in R v Perkins [2018] NSWCCA 62, where Fullerton J took into account a background of exposure to domestic violence in terms of the offender's diminished emotional resources, and capacity for mature decision making and self-regulation: [135] – [136]. 2. The history of sexual abuse is also well recognised following the Royal Commission into Institutional Responses to Child Sexual Abuse to impact upon psychological development in a myriad of ways. As is set out in the Bar Book Project's chapter on exposure to Childhood Sexual Abuse, childhood sexual abuse is well recognised as a substantial risk factor for the development of subsequent mental health problems, including major depression, increased risk of alcohol and drug dependence, which is often a means of coping with psychological trauma and aggressive behaviours and social anxiety. The combined evidence presented in this matter has all of these indicators. 3. Similarly, the Bugmy Bar Book chapter on Childhood Exposure to Domestic and Family Violence similarly indicates that there is evidence of a link between exposure to family violence in childhood and the intergenerational transmission of violence, as well as alcohol and drug use. Children so affected in these formative years are vulnerable to developing long-term mental health issues which is itself a risk factor for both experiencing and perpetuating violence. Indeed, as is recognised by the studies, the earlier the exposure to domestic violence in a child's life, the greater the damage to the individual: Bugmy Bar Book Childhood Exposure to Domestic and Family Violence at [19] – [20]. 4. Although it is not necessary to do so I do find that the combined evidence indicates there is a causal link between the offending behaviour and Ms Kirk's exposure to these combinations of disadvantage in her young life. 5. The application of Bugmy principles clearly arises in this matter: Bugmy v The Queen [2013] HCA 37 at [44]. I take note of the background of that particular community that was put before the CCA and High Court in respect of Mr Bugmy. Based upon that material I accept that the north western community of NSW, is a community that has been marred by the impact of colonisation, movement of communities, and removal of children resulting in dispossession and intergenerational trauma. Nonetheless there remains strength and, as this offender's mother proves, resilience in this community. 6. The relevance of these combined heads of disadvantage in this individual's life story are relevant to an assessment of moral culpability, moderating the weight to be given to general deterrence. It is also relevant to a finding of special circumstances including the shaping of conditions to enhance the prospects of rehabilitation. These features have considerable play in the sentencing of this individual. Other factors JIRS Statistics 1. I have had consideration to the JIRS statistics for these offences noting that statistics are a blunt tool saying nothing about the objective criminality of the offending or the individual: Wong (2001) 207 CLR 584 at [59]. Nonetheless they provide some assistance as a reference in respect of the sentencing pattern in this state. The JIRS sentencing statistics indicate that about 94% of people charged with this offence received periods of gaol with 6% receiving ICO orders. Of those receiving jail the majority of offenders received gaol terms with head sentences of between 30 and 36 months. Determination 1. I take into consideration the factors set out in s 3A of the C(SP)A noting that this is a matter that calls for the application of the principles of: punishment, deterrence, protection of the community, promotion of rehabilitation, accountability, denunciation, recognising the harm done to the victim and the community 2. I take into account the maximum penalty and note that there is no standard non-parole that has application to this offence. 3. It is accepted that the s 5 threshold is crossed and that no sentence other than one of imprisonment is appropriate. Pursuant to s 66(1) of that Act, I have taken into account that community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. I must assess pursuant to s 66(2) when considering community safety, whether making the order or serving the sentence by way off full-time detention is more likely to address the offender's risk of re-offending. 4. Whilst the offender has done well in custody, I am satisfied that release into the community with the significant protections and supports organised for her in a culturally appropriate environment, with the care and oversight of her mother, does best address her long and short term criminogenic issues and therefore the safety of the community. 5. Unfortunately no assessment report has been obtained in this matter despite one being requested. Nonetheless a quantity of Correctives material including Justice Health material has been placed before the court. In accordance with s 17D(1A) I find that there is sufficient information before the court to justify the making of an ICO without a report. Intensive Corrections Order 1. The offender is convicted. 2. I am satisfied of the matters set out in s 67(1) and have had regard to the matters set out in s 67(2) of the C(SP)A. 3. Taking into account the not insignificant matter on the Form 1, the time already spent in custody and the 25% discount off the sentence for the utilitarian value of the plea, the offender is sentenced to a term of imprisonment of 15 months, to be served by way of an Intensive Corrections Order. That sentence will commence on 12 March 2021 and expire on 11 June 2022. 4. The standard conditions that apply during the term of the order are that the offender; 1. Must not commit any offence, and 2. Must submit to supervision by a Community Corrections officer, at the Penrith Community Corrections Office, and to telephone the office within 3 days of her release to arrange a time to attend this office to facilitate this condition. 1. The following additional condition/s that apply are that the offender: 1. Reside with your mother at 17/44 Gardner St Rooty Hill or any other address as approved by Community Corrections. 2. Abstain from drugs and alcohol for the duration of the order and to comply with testing in this regard. 3. Accept referrals by Community Corrections for psychological assessment and counselling. 4. Engage with the Australian Nursing Family Partnership Program; 5. Engage with the Marrin Weejali in respect of drug and alcohol counselling or any other organisation as recommended by Community Corrections. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 August 2021