Regina v Kim Duke [2000] NSWCCA 403

New South Wales Court of Criminal Appeal

CITATION : Regina v Kim Duke [2000] NSWCCA 403 FILE NUMBER(S) : CCA 60379/2000 HEARING DATE(S) : Wednesday 4 October 2000 JUDGMENT DATE : 4 October 2000

PARTIES : Kim Duke (applicant) Regina (respondent) JUDGMENT OF : Simpson J at 1; Hidden J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/1062 LOWER COURT JUDICIAL Knight DCJ OFFICER :

COUNSEL : C C Scouler (applicant) R Hulme (Crown) SOLICITORS : Legal Aid Commission (applicant) DPP (Crown) CATCHWORDS : CRIMINAL LAW - Sentence - use offensive weapon with intent to prevent lawful apprehension - exceptional case - whether full-time custodial sentence inevitable LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 R v Hamilton (1993) 66 ACrim R 575 CASES CITED: R v Carter (CCA, unreported 29 October 1997) R v Bazzi [1999] NSWCCA 346 DECISION : Appeal allowed - sentence of periodic detention substituted

IN THE COURT OF CRIMINAL APPEAL 60379 of 2000

SIMPSON J HIDDEN J

Wednesday 4 October 2000 Regina v Kim Duke

Judgment

1 SIMPSON J: Justice Hidden will give the first judgment. 2 HIDDEN J: I think I can indicate at the outset that we have agreed that a term of periodic detention is the appropriate outcome. What I propose to do is give the reasons why I have arrived at that view and then, subject to anything the learned presiding judge might have to say, we might need your assistance as to the procedure under the new legislation and how the order ought to be framed. So I won't make any formal order or specify the length of the term I have in mind until we have had your assistance on the matter. 3 The applicant, Kim Duke, pleaded guilty in the District Court to the following charges: Using an offensive weapon with intent to prevent her lawful apprehension, an offence under s33B of the Crimes Act, common assault and larceny. On the charge under s33B she was sentenced to imprisonment for two years with a non-parole period of nine months, to date from 9 June 2000, that being the date when sentence was passed. On each of the charges of common assault and larceny, she was sentenced to concurrent terms of imprisonment for one month and those terms have now been served. She seeks leave to appeal against the sentence imposed in respect of the major charge, the charge under s33B of the Crimes Act. 4 The charges arise from the same incident. Shortly stated, the facts are these: In the late afternoon of 4 June 1999, the applicant went to a department store at Penrith Plaza. She selected a number of household items and attempted to leave the store without paying for them. She was approached by the store manager, a Ms Stefanac, who asked to inspect the bags which she was carrying. The applicant made no reply, but produced an unidentified article wrapped in black cloth which she thrust into the stomach area of Ms Stefanac. It is that conduct which gave rise to the charge of the common assault. 5 She then ran from the store, carrying with her the items she had selected. She was pursued by Ms Stefanac, who enlisted the aid of other security staff at Penrith Plaza, including Mr Troy Byrne. At one stage she abandoned the goods which she had taken from the store, but continued her escape. Eventually she was intercepted by security staff and surrounded by them. She then produced from her handbag what was described as a tazer device. This apparently was a home-made device, capable of inflicting an electric shock. She struck Ms Stefanac and Mr Byrne with that device. The shock caused Mr Byrne to be thrown backwards. He suffered two small puncture wounds to his left forearm and suffered nausea and dizziness. He received medical attention. It seems that Ms Stefanac herself did not sustain any significant injury. 6 The applicant was restrained and taken into custody. The goods which she had stolen, all of which were recovered, were of a value of something less than $200. 7 His Honour was satisfied that the tazer device was not capable of causing death or inflicting any permanent injury. He accepted the applicant's evidence that she did not carry it on that occasion for the purpose of avoiding apprehension. Her evidence was that she had the device as a form of protection against her then de facto partner, who was habitually violent to her. That's a matter to which I shall return. 8 Nevertheless, his Honour characterised the use of the weapon in those circumstances as serious and such as to call for a deterrent sentence. Certainly, offences of this kind are properly viewed seriously. This Court, on more than one occasion, has said as much in cases dealing not only with attempted apprehension by police officers, but also by citizens acting in other capacities: see R v Hamilton (1993) 66 ACrim R 575; R v Carter (CCA, unreported, 29 October 1997); and R v Bazzi [1999] NSWCCA 346. 9 His Honour accepted that the applicant had pleaded guilty at the earliest reasonable opportunity. She is now thirty-four years old. She has some criminal record, but its age and nature are such that his Honour saw it as of little or no significance. She had never before been sentenced to a term of imprisonment. 10 She has a sad background, which was detailed in a comprehensive report of Dr Christopher Lennings, a clinical psychologist, which report was before his Honour. It is unnecessary to go to the detail of that material. As his Honour observed, she had had an unhappy life, including a troubled childhood. She had been physically abused by her stepfather, and she had been in two de facto relationships, both characterised by abuse. This was especially true of the second of those relationships, which was on foot at the time these offences were committed. 11 Perhaps not surprisingly, she had a history of abuse of alcohol and, more significantly, of drugs: amphetamines and Panadeine Forte in particular. Indeed, on the very day of the offences she had been subject to a serious episode of violence inflicted upon her by her de facto partner. She had drunk bourbon and consumed amphetamines and Panadeine Forte. To Dr Lennings she described her emotional state at the time as "desperate". 12 She has children from the two relationships to which I have referred, a daughter who is now about seventeen years old and twins who are only three years old. 13 Dr Lennings had this to say in his helpful report: Miss Duke is not coping with the adversities of life. Her offence appears to derive from a problematic and violent relationship which she has since terminated. Her behaviour contributing to the offence was a mixture of her drug affected personality at the time, the impact of a recent beating from her de facto, and a mild sense of persecution she experienced (probably as a result of the drug induced mood change, the beating and her life experiences). At the time of the offence she was being treated for depression and without a doubt her significant depression was contributory to her behaviour.