Director of Public Prosecutions v Kirby

[2025] VCC 971

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-24-00140

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE RICHARD KIRBY

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JUDGE:	HER HONOUR JUDGE ENGLISH
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2025
DATE OF SENTENCE:	10 July 2025
CASE MAY BE CITED AS:	DPP v Kirby
MEDIUM NEUTRAL CITATION:	[2025] VCC 971

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING

Catchwords:              Theft – Common law assault – Threat to inflict serious injury – Attempted burglary – Causing injury recklessly – Burglary – Damaging property - Dangerous driving while pursued by police –– Damaging an emergency services vehicle – Possess a controlled weapon - Drive whilst disqualified – Fail to stop on police direction – Failing to give name and address – Drive whilst having prescribed concentration of drugs

Legislation Cited:      County Court Act 1958 s 15; Crimes Act 1958 s 18, 21, 74, 76(1), 197, 317AG(1), 319AA(1), 321M; Sentencing Act 1991 s 6AAA, 18, 83A, 89(3); Road Safety Act 1986 s 30(1), 64(a), 61(1)(c), 49(1)(bb), 85B; Control of Weapons Act 1990 s 6(1).

Cases Cited:Akoka v the Queen [2017] VSCA 214

Sentence:                  Total effective sentence of 18 months imprisonment. Driver’s licence cancelled and disqualified for 24 months. Fine of $500.  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Piccone	Office of Public Prosecutions
For the Accused	Ms M Shanahan	Angus Cameron and Partners

HER HONOUR:

1Luke Richard Kirby, you have pleaded guilty to charges arising out of a two-day period of offending when you stole groceries and assaulted a shop assistant, then drove in a stolen car with an unknown person to a golf course and burgled a shed and, when interrupted by a concerned citizen, you drove after that citizen, ramming their car and swerving to hit their car. You then drove to a factory and entered cars and buildings and stole various items, and later the same night when you were motioned by police to pull over, you drove at high speed towards police officers, and escaped police pursuit. Later the same night you evaded police again, this time by driving on the wrong side of a road through a red light almost having a head on collision. The next day whilst driving you crashed into another car, however kept driving without stopping. The same day you were located by police in the same car and arrested.

2This matter commenced before Judge Maidment on 4 March 2025, who deferred sentence under s83A of the Sentencing Act 1991 until 1 July 2025. As Judge Maidment has retired, in accordance with s15 of the County Court Act1958, I now have conduct of your case. I have read the transcript of the hearing on 4 March 2025 and read the three victim impact statements. On 1 July 2025 I heard a further plea from your counsel and now sentence you.

3You have specifically pleaded guilty to the following charges:

· Five charges of theft under s74 of the Crimes Act 1958 (Charges 1, 7, 8, 9 and 14) which for each charge carries a maximum penalty of 10 years' imprisonment;

·     One charge of common assault under Common Law (Charge 2) which carries a maximum penalty of five years' imprisonment;

· One charge of threat to inflict serious injury under s21 of the Crimes Act 1958 (Charge 3) which carries a maximum penalty of five years' imprisonment;

· One charge of attempted burglary under s321M and s76(1) of the Crimes Act 1958 (Charge 4) which carries a maximum penalty of five years' imprisonment;

· One charge of causing injury recklessly under s18 of the Crimes Act 1958 (Charge 5) which carries a maximum penalty of five years' imprisonment;

· One charge of burglary under s76(1) of the Crimes Act 1958 (Charge 6) which carries a maximum penalty of 10 years' imprisonment;

· One charge of damaging property under s197 of the Crimes Act 1958 (Charge 10) which carries a maximum penalty of 10 years' imprisonment;

· Two charges of dangerous driving at excessive speed while pursued by police under s319AA of the Crimes Act 1958 (Charges 11 and 13) for which for each charge carries a maximum penalty of three years' imprisonment; and

· One charge of reckless driving to cause damage to an emergency service vehicle under s317AG of the Crimes Act 1958 (Charge 12) which carries a maximum penalty of five years' imprisonment.

4You have also pleaded guilty to six related summary charges of:

· Possessing a controlled weapon under s6(1) of the Control of Weapons Act 1990 (summary Charge 12);

· Drive whilst disqualified under s30(1) of the Road Safety Act 1986 (summary Charges 8, 19, 28 and 34 (rolled up));

· Fail to stop on police direction under s64(a) of the Road Safety Act 1986 (summary charge 30);

· Fail to stop vehicle after an accident under s61(1)(a) of the Road Safety Act 1986 (summary charge 20);

· Drive whilst having prescribed concentration of drugs present, namely methylamphetamine, under s49(1)(bb) of the Road Safety Act 1986 (summary Charge 36); and

· Drive whilst disqualified under s30(1) of the Road Safety Act 1986 (summary Charge 38).

Circumstances of offending

5The prosecution tendered an amended summary prosecution opening upon plea,[1] which sets out the agreed facts of your offending. I sentence you on the basis of the facts as set out there. There were six separate incidents of offending between 29 and 30 January 2023.

[1]        Amended Prosecution Opening Upon Plea dated 3 March 2025 – Exhibit A.

6In brief the circumstances of your offending follow:

Incident one

7On 29 January 2023 at approximately 6.30 pm your then girlfriend, Ms Monique Dunlop, attended Woolworths Epsom and chose some groceries, but as she was unable to pay, left a number of items at the self-service checkout. At approximately 7 pm you attended the Woolworths with Ms Dunlop. You selected items which you placed in a shopping basket and attempted to leave the store through the self-service checkout area without paying for approximately $100 worth of groceries. You were stopped by a Woolworths employee, Ms Helen Hartup, who grabbed the basket and fought to retain it which you then pushed into her stating, 'Do you want me to stab you? I'm going to stab you'. You repeatedly asked for her name, and said you would 'get' her. This constitutes Charge 2, common assault, and Charge 3, threat to inflict serious injury.

8You then extended the blade of a folding utility knife which you held behind your back, but did not produce or display. Your possession of the flick knife constitutes summary Charge 12, possession of a controlled weapon. 

9During the struggle some grocery items fell from the basket which Ms Dunlop retrieved, and she ran out with the basket of groceries (this constitutes Charge 1, theft) followed by yourself, yelling to Ms Hartup, 'I'm going to come back and I'm going to kill you'.

Incident two

10Later the same evening at approximately 7.45 pm you drove with an unidentified male in a silver Aurion to the Bendigo Golf Club. Driving the silver Aurion this day constitutes summary Charge 8, (rolled up with summary Charges 19, 28 and 34), of drive whilst disqualified. At the Golf Club you were seen by Mr Daniel Cooper and Ms Kristie Lehmann with the unidentified male, attempting to break into the maintenance shed with bolt cutters (this constitutes Charge 4, attempted burglary). Mr Cooper approached you in his vehicle, a Mazda BT50 Ute, and then drove off, whilst you both ran back to the silver Aurion, with you driving, chasing Mr Cooper in his Ute. Whilst Mr Cooper drove off, Ms Lehmann called 000 at 7.49 pm.

11

Whilst chasing Mr Cooper in his Ute, you rammed the Ute from behind and, as

Mr Cooper drove over railway tracks, you sped up, swerving the silver Aurion making contact with the right side of the Ute. Mr Cooper stated he was, 'absolutely panicking. I thought I was going to be killed by these guys'.

12Mr Cooper was driving at approximately 80kph when you again drove towards the Ute at a high speed and made contact with the Ute's right back corner. Mr Cooper lost control of his car, hit the side of the bridge, the Ute skidded along the concrete wall flipped onto its left side and continued to skid before rolling back onto four wheels and stopping.

13You then drove towards the Midland Highway. Mr Cooper was taken to hospital suffering from bruising and abrasions to the right side of his neck from the seat belt and a chipped front tooth which constitutes Charge 5, recklessly causing injury and summary charge 20 of failing to stop after an accident.

Incident three

14Later the same night at approximately 8 pm you drove the silver Aurion with the unidentified male to the Ridley Agriproducts factory. You were identified on CCTV. The unidentified male entered a Ford Territory car and stole two pairs of sunglasses which constitutes Charge 8, theft.

15You and the unidentified male then entered a shed and building on the property and took stolen items back to the silver Aurion. This constitutes Charge 6, burglary. You are seen on CCTV footage loading a small pressure washer into the car (this constitutes Charge 7, theft) and then, with a set of bolt cutters, you broke into a portable building and the unidentified male broke into another shed. The unidentified male then smashed the windows of a Subaru WRX (this constitutes Charge 10, damaging property) and stole jumper leads (this constitutes Charge 9, theft) as well as an electric bike from the boot.

16Whilst you and the unidentified male were loading a large industrial sized pressure washer onto the roof of the car, and a toolbox onto the bonnet of the car you were disturbed and you got back into the silver Aurion and drove off. You had loaded so many items you had to stop and re-arrange the stolen goods outside the factory on Victa Road.

Incident four  

17Later the same night at approximately 8.10 pm, a police divisional van pulled up directly in front of the silver Aurion when you were in the driver's seat. Senior Constable Trent Dole and Senior Constable Armando Oliver exited the vehicle in high visibility police vests yelling at you to stop. You reversed the silver Aurion and drove at high speed, tyres screeching, towards both police members. SC Dole discharged his taser at you through the open driver's side window, to no effect. The silver Aurion made contact with the front left side of the divisional van, causing minor damage to the bull bar which constitutes Charge 12, damaging an emergency services vehicle.

18Police attempted to pursue the silver Aurion down Victa Road however it escaped, and this constitutes Charge 11, dangerous driving whilst pursued by police.

Incident five

19This occurred later the same night at approximately 8.35 pm on Holdsworth Road. You were in a car park when passing police noticed the silver Aurion had no number plates. When Sergeant Geoffrey Annand performed a U-turn, you fled along Finn Street and then Holdsworth Road. You overtook an unmarked police car and Senior Constable Todd Deary activated lights and siren and a pursuit commenced. You drove on the wrong side of the road through a red light and almost had a head on collision with an oncoming vehicle. SC Deary estimated your speed at 120 kph in a 60 kph zone. This conduct constitutes Charge 13, dangerous driving while pursued by police and summary Charge 30, failing to stop on police direction.

Incident six  

20This took place on Bank Street at approximately 2.20 pm the next day, 30 January 2023. You were driving the silver Aurion on this day. This constitutes summary Charge 38, drive whilst disqualified. You then crashed into a parked blue Ute and after the collision you failed to stop and leave your name and address.  

21Police were called and found you at Kangaroo Flat slumped over the wheel of the silver Aurion. This constitutes Charge 14, theft. The silver Aurion was confirmed to be stolen.

22You were then given a preliminary oral fluid test and you tested positive for methylamphetamine, which constitutes the summary Charge 36 of drive whilst having prescribed concentration of drugs – namely methylamphetamine.

23On 30 January 2023 you were interviewed by police and admitted ingesting methylamphetamine that day and admitted to having taken Xanax. You were charged and remanded in custody.

Personal circumstances

24You are the youngest of five siblings and grew up in northern Victoria. Your father died from cancer when you were eight.

25Your mother, who I see is in court today to support you, was an aged care worker, who has recently retired. Your siblings are all gainfully employed. You come from a loving and stable home.

26You left school part way through Year 11 and started working on dairy farms from 2013 to 2018 throughout northern Victoria. You consumed alcohol and occasionally cannabis.

27In 2018 you relocated to the Bendigo area and were introduced to methamphetamine. You quickly fell into heavy use and addiction. You first appeared at court in June 2020 when you were placed on an adjourned undertaking without conviction. In May 2021, on further offending, you were sentenced to imprisonment and re-sentenced on the earlier matters for which you received the undertaking. You were refused parole and served the entire head sentence.

28Upon release in 2022 you returned to your mother's home in the Bendigo area. You started using drugs again and had no stable accommodation.

29Whilst on remand for these matters you were at Port Phillip Prison and commenced buprenorphine injections, which you have continued with. You remained in custody for 569 days and were released on bail on 20 August 2024.

30You were bailed to reside at Odyssey House. On 15 October 2024 you were briefly exited the program for failing to disclose the use of a mobile phone by another resident, but were readmitted on 28 October 2024 and have remained there for 312 days until yesterday. You completed Level 1 of the program and were on Level 2. You were employed at Odyssey House as the Assistant Coordinator of Property Development and Maintenance, though as discussed earlier, you exited the program yesterday.

31Letters were produced in support of your plea from Frank Inturrisi, AOD Clinician at Odyssey House. He states during your stay at Odyssey House you have remained illicit drug free, which is supported by weekly supervised urine analysis and independently analysed. You participated in weekly group therapy sessions to address underlying issues associated with your substance use. You have also completed an eight week psycho education program called Motivating Affect Self Control.

32A letter from Kim Patterson, Men's Services Facilitator at Gippsland Lakes Complete Health, confirms you have completed 14 weeks of a 20 week Men's Behaviour Change program with a further six sessions remaining.

Submissions

33You pleaded guilty post committal which was described by counsel as at the earliest reasonable opportunity. This spared victims having to give evidence before a jury and your plea of guilty also indicates your acceptance of responsibility and a level of remorse.

34When released from custody in 2024, having been denied parole, it was submitted you had no formal supports or relapse prevention in place.

35Your counsel noted your brother has organised a job for you in Western Australia for you which you are keen to take up to avoid returning to the Bendigo area.

36Counsel acknowledged your very serious offending and that a sentence must reflect the sentencing objectives of just punishment, deterrence and the protection of the community.

37Counsel submitted that given your plea of guilty, relative youth, confined criminal history and significant rehabilitative efforts, namely your restrictive therapy at Odyssey House for 312 days, that a straight term of imprisonment was an open and appropriate sentence to meet sentencing objectives.

38The prosecution submitted, 'It's a matter for the court whether the time served is enough'.[2]

[2]        Transcript of Plea Hearing Tuesday 4 March 2025, 20:22 – 20:23.

39The prosecution urged a disposition involving further oversight, such as a CCO should be considered by the court to ensure your rehabilitation efforts are realised, particularly given your plans to relocate to Western Australia. A CCO would also serve to ensure the protection of the community.

40The prosecution took no issue with the personal circumstances raised by your counsel and described the gravity of your offending as medium level offending.

41The prosecution noted your offending is aggravated by the fact you were on bail at the time and had two bench warrants for your arrest.

Sentencing considerations

42Overall your offending is serious.

43The dishonesty offences appear to be calculated and are committed on soft targets, namely a supermarket, sheds and a factory.

44

Your dishonesty offending was accompanied by casual incidental violence towards innocent people who got in your way. I consider the common law assault of

Ms Hartup in the supermarket, when she was doing her job, to be a serious offence.

45Your driving offences are particularly concerning as you have intentionally weaponised your vehicle by ramming Mr Cooper's car, and swerving to clip it and then ramming it again. In another incident you drove your car at high speed towards two police officers and clipped the police divisional van, and in a further incident you ran a red light and drove on the wrong side of the road where you almost had a head on collision. You also hit a car when driving and did not stop. On two occasions your driving was dangerous, whilst flagrantly evading police pursuit.

46I take into account the maximum penalty for each charge as detailed above.

47I was not referred to current sentencing practices, however the sentencing principles applicable to the offences of dangerous driving are punishment and denunciation, as are deterrence and protection of the community. Dangerous driving is objectively dangerous as it creates risk to people and property nearby.

48In this case your offending is objectively serious as, at the time of offending, you were disqualified from driving, you were on bail and had two outstanding bench warrants, you were driving a stolen vehicle, you recklessly caused injury to another driver by your conduct, and you drove whilst affected by methylamphetamine and would not have been in proper control of the car.

49You have a short but relevant prior history: whilst your two prior court appearances were dealt with in the Magistrates' Court, this offending is relevant as the driving offences are similar, and these charges mark an escalation in your conduct. You have relevant prior convictions for dangerous driving whilst pursued by police, driving whilst suspended, failing to stop a vehicle on police direction as well as refusing a breath test and unlawful assault.

50Whilst you are not a young offender, your culpability is only slightly moderated by your age at the time of the offending, 25. Your conduct appears to be borne from your drug taking at the time.

51

I have read the victim impact statements and your actions have had a significant impact on each person affected. They became the subject of your offending because they attempted to intervene and prevent or report your conduct.

Mr Cooper's victim impact statement notes after your offending he became anxious and stopped socialising and lost his trust in people. Ms Hartup described feeling vulnerable, nervous and stressed and has left the store where she had worked for six years and moved to another store, which is double the driving distance, because of your conduct. These are the real victims who have suffered as a result of your conduct.

52In the circumstances of this case I accept counsel's submission that punishment, deterrence and protection of the community are the purposes for which a sentence should be imposed.

53I take into account the utile value for the community of your plea of guilty obviating the need for a trial. Your plea of guilty also reflects your remorse.

54Your commitment to rehabilitation has been expressed through your 312 day residence at Odyssey House. In Akoka v The Queen,[3]  the Court of Appeal held credit should be given for the punitive nature of residency in a drug rehabilitation facility. The extent of the credit will depend on the nature and severity of the restrictions.[4] I note at Odyssey House you have been in residence seven days a week and in an environment where you are working, attending sessions, now at Level 2 having completed the core Level 1, and were abiding by the fairly strict program rules. In my view Odyssey House offers a restrictive therapeutic environment and I give credit for your success there and take that into account in sentencing. Unfortunately you have been exited from the program yesterday, but unlike the last time you were released from custody, you now have had 312 days of intensive drug rehabilitation.  Submissions were made from the Bar table about your plans to ensure your rehabilitation continues.

[3] [2017] VSCA 214 (‘Akoka’)

[4]        Akoka, [109].

55Punishment, general and specific deterrence, and protection of the community are important sentencing purposes in this matter. I take into account your plea of guilty, your period in custody, as well as the effort you have made at Odyssey House and time you have been in that restrictive setting. I am persuaded your rehabilitation is protective to the community. You have made a strong start, it is up to you to continue.

56For these sentencing purposes I intend to sentence you to a straight period of imprisonment. As you have been convicted of two or more offences arising from the same facts or of a similar character in accordance with s9 of the Sentencing Act 1991, I have imposed aggregate sentences. I take into account the principle of totality which requires when a court sentences an offender for multiple offences, that the overall sentence must be a, 'just and appropriate measure of the total criminality involved'.[5] I also take into consideration the principle of parsimony that the sentence be no more severe than is necessary to satisfy the purposes of sentencing.

[5]        Postiglione v The Queen (1997) 189 CLR, 307-306.

57With respect to your driver licence, I note a mandatory period of 12 months' cancellation and disqualification applies with respect to each of the two charges of dangerous driving whilst pursued by police, Charges 11 and 13, under s89(3) of the Sentencing Act 1991. Further, a period of 12 months cancellation and disqualification applies to having prescribed concentration of drugs present charge, summary Charge 36, as you have a relevant prior matter of refuse breath test. I note counsel's submission your bail condition not to drive has been in place since you were granted bail on 15 August 2024, which could be treated as a s85B immediate licence or permit suspension where certain certificates of breath or blood alcohol concentration issued of the Road Safety Act 1986 and back dated.  I am not convinced that that course is available or appropriate in this case. I have outlined my deep concerns with your driving previously. The absolute minimum period of disqualification is 12 months. I intend to extend the statutory minimum period.

Sentence

58Luke Richard Kirby, I sentence you as follows:

Charge(s)	Offence		Maximum	Sentence	Cumulation
2	Common law assault		5 years	Aggregate 12 months	Base
3	Threat to cause serious injury		5 years
1, 7, 8, 9, 14	Theft		10 years	Aggregate six months
4	Attempted burglary		5 years	Aggregate six months
6	Burglary		10 years
10	Damaging property		10 years
5	Recklessly cause injury		5 years	Six months
11	Dangerous driving while pursued by police		3 years	Four months
13	Dangerous driving while pursued by police		3 years	Four months	Four months on base sentence
12	Damaging an emergency services vehicle		5 years	Two months	Two months on base sentence and Charge 13
Summary charge 12	Possess a controlled weapon		120 penalty units or 1 year	One month
Summary Charge 8 (19, 28 and 34 rolled up)	Drive whilst disqualified		240 penalty units or 2 years	One month
Summary charge 38	Drive whilst disqualified		240 penalty units of 2 years	One month
Summary charge 30	Failing to stop on police direction		For first offence 60 penalty units or 6 months or both	Aggregate one month
Summary charge 20	Failing to give name and address		10 years or 1200 penalty units
Summary charge 36	Drive with prescribed concentration of drugs		For second offence, fine of 60 penalty units	$500.00 fine
Total Effective Sentence:			18 months’ imprisonment
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			569 days
6AAA Statement: 2 and a half years’ imprisonment with non-parole period of 18 months
Driver Licence cancellation and disqualification:		Charge 11: 12 months Charge 13: Two years Summary Charge 36: 12 months Summary Charge 20: Three months Total period of disqualification: Two years

59I make the following orders with respect to cumulation.

60To reflect the criminality of your offending the period of four months' imprisonment for Charge 13 is to be served cumulatively upon the base sentence, and to reflect the criminality of your offending, the period of four months for Charge 13 is to be cumulatively served upon the base sentence.

61With respect to Charge 12, damaging the emergency services vehicle, the presumption of concurrency is displaced, and this two month sentence of imprisonment is to be served cumulatively upon the base sentence and Charge 13.

62That makes a total effective sentence of 18 months’ imprisonment.

63With respect to your driver licence I order;

64On Charge 11, all licences held by you are cancelled and you are disqualified from driving for 12 months.

65On Charge 13, all licences held by you are cancelled and you are disqualified from driving for two years.

66On summary Charge 36 all licenses held by you are cancelled and you are disqualified from driving for 12 months.

67On summary Charge 20 all licenses held by you are cancelled and you are disqualified from driving for three months.

68The total effective sentence is 18 months’ imprisonment and total period of driver licence disqualification is two years.

69Pursuant to s18 of the Sentencing Act 1991 I take into account your time in custody and order that 569 days of presentence detention be reckoned as already served.

70I indicate under s6AAA of the Sentencing Act 1991 that but for your plea of guilty I would have imposed a total effective sentence of imprisonment of two and a half years with a non-parole period of 18 months.  Unless there is anything to say from counsel in respect of those remarks?

71MS PICCONE:  Your Honour, only that I have a note from the original plea hearing from Judge Maidment about that orders would need to be made about the remaining summary charges that were not ultimately prosecuted.  I am not sure whether they have in fact already been struck out, but if not perhaps just for completeness.

72HER HONOUR:  If they have not been ordered I will order that those ones be struck out.  These are the rolled up ones and the ones that did not proceed?

73MS SHANAHAN:  Yes, there was a number of summary charges that did not proceed, Your Honour.  They are listed on the front of the notice of related summary offences.

74HER HONOUR:  Could you perhaps for the record jut outline those?  Which ones did not proceed?

75MS SHANAHAN:  It was Charges 7, 9, 13, 18, 19, 21, 27, 28, 31, 32, 33, 34, 35, 37, 40.

76HER HONOUR:  For the record I will note that those summary charges just read out by the prosecutor are struck out.  Is there anything further?

77MS PICCONE:  No, Your Honour.

78MS SHANAHAN:  No, Your Honour.

79HER HONOUR:  Thank you, we will adjourn the court.