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. The doctor continued: From a psychological perspective Ms Duke is beginning to reform her relationship with her children after a long separation and a custodial sentence would be expected to seriously impact on her ability to mother and care for her children in the future. Secondly, Ms Duke's emotional state is very poor and in my view she requires some treatment for it. My thoughts on this matter is that a comprehensive treatment plan needs to be established for Ms Duke. The doctor concluded his report by outlining what he considered would be an appropriate treatment plan if she were to remain at liberty in the community. 14 His Honour accepted that the applicant had severed her relationship with her abusive partner. At the time of sentence she was living with her mother and caring for her children. His Honour also accepted that she had ceased her use of drugs and, as he put it, "seemed to be making a real attempt to avoid coming in conflict with the criminal law". Nevertheless, his Honour determined that the seriousness of the offence and the need for deterrence compelled a full-time custodial sentence. Periodic detention had been urged upon him but he rejected it, saying: I would be failing in my duty and being weakly merciful were I to adopt anything other than a full-time custodial sentence. In my view any other sentence would be inappropriate. 15 Nevertheless, his Honour expressed great concern about the welfare of the twin children, recognising the importance of their need for a mother's care. It was this, together with the obvious prospects of the applicant's rehabilitation, which led him to find special circumstances in accordance with the new legislation and to specify a non-parole period significantly lower than that which the normal proportion would have dictated. 16 In this Court argument for the applicant resolved itself into an assertion that this was a case not calling for a full-time custodial term. In short, it was argued that his Honour fell into error in rejecting out of hand the option of periodic detention. The Crown prosecutor in this Court acknowledged that a term of imprisonment by way of periodic detention would have been open to his Honour, but submitted nonetheless that his Honour did not fall into error in imposing the relatively modest custodial sentence which he did. 17 Having had the opportunity to reflect upon the matter, I am satisfied that his Honour did fall into error in imposing a full-time custodial sentence in this unusual case. Not only was the option of periodic detention available to him, I am satisfied it was the appropriate course to take. I say so because of the applicant's background, the circumstances giving rise to the offence, the nature of the offensive weapon involved and the reason for which she was carrying it, her mental state at the time, her family responsibilities and her prospects of rehabilitation. The combination of those circumstances satisfy me that this is an exceptional case where a full-time custodial sentence was not called for. 18 We have been assisted by some Judicial Commission statistics provided by the Crown prosecutor, from which it does appear that the sentence of two years is low in the range of full-time custodial sentences for this type of offence, but what they also disclose is that in thirty-four per cent of the fairly large sample contained in those figures dispositions other than full-time custody were resorted to. 19 In the circumstances, I am of the view that the Court should intervene and should do so by imposing a sentence to be served by way of periodic detention. In arriving at the appropriate sentence, I would have regard to some further affidavit material with which we have been provided, which demonstrates the real difficulties occasioned by the applicant's separation from her little children and also suggests that she has participated to the extent that she has thus far been able in education programs within the prison system. I am also of the view that in framing the appropriate order, we should have regard to the fact that she has now served some four months of full-time custody. 20 It is at this stage, if that is the view of the court, that I would invite counsel's assistance as to the appropriate procedure and the relevant provisions of the new legislation. 21 SIMPSON J: It may be a convenient course if I express my views as to the reasons for coming to that result and then we will determine the order. I agree in large measure with what has been said by Justice Hidden. There is one minor point of departure which I will come to in a moment. The issue revolves around the passage in the remarks on sentence which has been quoted by Justice Hidden. The Crown acknowledged during the course of argument that this was a case in which a sentence of periodic detention was one of the available possibilities, although he urged that the sentence imposed was also an available sentence. 22 In my opinion, the error that has been disclosed was in the sentencing judge discarding from consideration the option of periodic detention. He therefore cut off one possibility legitimately available to him. I am not convinced that the sentence imposed was not within the available range, had his Honour properly directed himself as to that range. 23 What I have said should not be taken to mean that a sentencing judge has in every case to define the parameters of the range and then select a sentence within that range, but here it is clear that the sentencing judge excluded from consideration one available option and the result of that is that error has been disclosed and this Court should proceed to re-sentence and in doing so, take account of the material that has been placed before us. 24 HIDDEN J: Thank you both for your assistance. The view I have reached is that, even though the applicant has now served some months of full-time custody, justice would be done if the sentence his Honour actually imposed were to be specified, but directed to be served by way of periodic detention. The simplest way to do that is this: The order I would propose is that leave to appeal be granted, the appeal be allowed and the sentence imposed by his Honour on the charge under s33B of the Crimes Act be quashed. The sentence I would propose is: The head sentence would be for one year and eight months, with a non-parole period of five months, to date from Friday next, 13 October 2000 and to be served by way of periodic detention. I would direct the applicant's release at the expiration of the non-parole period, the parole order being subject to the condition that she accept the supervision and guidance of the Probation and Parole Service for as much of the parole period as that Service considers appropriate. She is to report to the Norma Parker Periodic Detention Centre on Friday next, 13 October. 25 I note that Mr Scouler, her counsel, has undertaken to afford her the explanation of her obligations required by s71 of the Crimes (Sentencing Procedure) Act 1999, and I would direct that the Registry forward to her by fax this afternoon the notification of the result of this application and the notice required by s72 of the Crimes (Sentencing Procedure) Act. That material should be faxed to whatever institution currently holds her. Both parties have liberty to apply, in case any procedural or technical problems arise with compliance with either of those ss71 or 72. 26 SIMPSON J: I agree with the orders proposed and the orders will therefore be as proposed by Justice Hidden and I note in the event of any difficulties, the parties should notify the court so that the matter can be re-listed on Friday for the formalities to be attended to. ********** 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.