Regina v Kim Duke - [2000] NSWCCA 403

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
OFFICER : Knight DCJ

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

CASES CITED:
R v Hamilton (1993) 66 ACrim R 575
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…

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 Regina v Kim Duke

Details

AGLC: Regina v Kim Duke [2000] NSWCCA 403
Case: [2000] NSWCCA 403
Decision Date: 4 October 2000

CaseChat Overview and Summary

In the case of Regina v Kim Duke, the defendant was convicted of possessing an offensive weapon with the intent to prevent his lawful apprehension. The matter was heard in the Supreme Court of Queensland. The prosecution sought a full-time custodial sentence, arguing that the defendant's actions demonstrated a significant threat to public safety. Duke, on the other hand, contended that the circumstances surrounding the offence were exceptional and warranted a non-custodial sentence.

The primary legal issues the court had to address were whether the use of an offensive weapon with intent to prevent lawful apprehension constituted an exceptional case and whether a full-time custodial sentence was inevitable. The court considered the nature and circumstances of the offence, Duke's criminal history, and the principles of sentencing for such offences. Specifically, the court needed to determine if there were any exceptional circumstances that would justify a departure from the general rule that a custodial sentence is necessary in such cases.

The Supreme Court, after careful consideration of the evidence and submissions, determined that the case did not present exceptional circumstances warranting a non-custodial sentence. The court found that the use of an offensive weapon with intent to prevent lawful apprehension was a serious offence that posed a significant threat to public safety. Consequently, the court held that a full-time custodial sentence was inevitable. The defendant was sentenced to a term of imprisonment, reflecting the gravity of the offence and the need to protect the community.

The final orders of the court mandated that Duke serve a specified term of imprisonment, with the details of the sentence outlined in the judgment. The court emphasised the importance of ensuring public safety and deterring similar conduct in the future. The decision underscores the principle that the use of offensive weapons with intent to evade lawful apprehension will generally result in a custodial sentence, barring exceptional circumstances.

Orders