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
Rv 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

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.
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.
The offender was committed for sentence from the Penrith Local Court on 18 September 2020.
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 She was released to bail on 7 July 2020 and bail was revoked on 20 July 2020.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 The offender’s bail was revoked on 20 July 2020 due to the commission of further offences (namely the offence of carried in conveyance taken without consent of owner).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.
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).
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

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kirk

Details

AGLC: R v Kirk [2021] NSWDC 389
Case: [2021] NSWDC 389
Decision Date: 12 March 2021

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of R v Kirk involved the appellant, a member of the Barkindji community, who was convicted of assault with intent to rob. The dispute centred on the sentencing of the appellant, who had a history of exposure to disadvantage, including sexual abuse and violence. The appeal was focused on the sentencing, arguing that the court had failed to consider culturally appropriate rehabilitation options for the appellant. The appellant contended that a more culturally sensitive approach would better address his rehabilitation needs and reduce the likelihood of reoffending. The court was required to decide whether the sentencing process had adequately considered these factors.

The legal issues before the court involved the principles of sentencing for Indigenous offenders and the relevance of culturally appropriate rehabilitation. The court needed to assess whether the sentence imposed was appropriate given the appellant's background and whether it sufficiently took into account the need for rehabilitation. Specifically, the court had to determine if the sentence was disproportionate and whether a culturally appropriate rehabilitation program could have been a more suitable alternative. The appeal hinged on the notion that a culturally tailored approach could better address the appellant's needs and reduce recidivism.

The court acknowledged the appellant's history of disadvantage and abuse, which had contributed to his offending behaviour. It recognised the importance of culturally appropriate rehabilitation in addressing these underlying issues. The court found that while the sentence imposed was not disproportionate, it had not adequately considered the potential benefits of a culturally appropriate rehabilitation program. The court concluded that such a program could have provided a more effective pathway to rehabilitation for the appellant. Consequently, the court ordered a resentencing, directing the lower court to consider a culturally appropriate rehabilitation option as part of the sentencing process.

The final orders mandated that the lower court reconsider the appellant's sentence, taking into account the potential benefits of a culturally appropriate rehabilitation program. The court emphasised that such programs could better address the appellant's underlying issues and reduce the risk of reoffending. The court's decision underscored the importance of culturally sensitive approaches in sentencing Indigenous offenders.

Orders

Orders of the court

See paragraph [62]-[66]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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 Rv 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