Director of Public Prosecutions v Kirby

[2025] VCC 716

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-02077

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON KIRBY

---

JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 July 2024, 4 December 2024, 9 April 2025
DATE OF SENTENCE:	4 June 2025
CASE MAY BE CITED AS:	DPP v Kirby
MEDIUM NEUTRAL CITATION:	[2025] VCC 716

REASONS FOR SENTENCE

---

Subject:  CRIMINAL LAW - SENTENCING

Catchwords:  Guilty plea – aggravated burglary – make threat to kill –   damage property – recklessly cause injury – Koori Court –   family violence – remorse – no prior criminal history – good  character

Legislation Cited:                  

Cases Cited:  Boulton v R [2014] 46 VR 308

Sentence: 2 year Community Correction Order; s 6AAA: 2 years; non- parole period 12 months

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D. O'Doherty	Office of Public Prosecutions
For the Accused	C. Davis (Sentence) J. Lowy (Plea)	Middleton Maisner Legal

HIS HONOUR:

1Jason Kirby, you have pleaded guilty to aggravated burglary, making a threat to kill, damaging property and recklessly causing injury, all occurring on 26 July 2023. 

Summary of offending

2The agreed bases for your guilty pleas are set out in the prosecution opening dated 17 June 2024. 

3In summary, by the time of the offences in July 2023, you had been in a relationship with your then ex-partner for more than ten years. You had three children together then aged about 11, 8, and 3 years.

4Unfortunately, during the COVID pandemic you had lost your job. Your relationship deteriorated due to financial stress and other stressors related to being at home together throughout lockdowns. 

5You moved out of the family home.  Your ex-partner refused to let you see your children, which you found very difficult to deal with and you turned to increased alcohol use. 

6In April 2022, you were actively suicidal and were admitted to the Mildura Base Hospital for inpatient treatment, which you received.  This was not the first time that you were treated there for those reasons (Exhibit 1). 

7In the early hours of 26 July 2023, you spoke with your ex-partner by phone. You became aware that she had come to have a person in the home with the children who you knew to be an active drug user and so not somebody to whom the children should be exposed.  You were upset about this and became angry.

8While angry, you threatened to go around the house, you called your ex-partner names, threatened to deal with the problem you perceived, including make threats against her. 

9Soon after you arrived at the house and attempted to open the door, but it was locked.  You hit the door handle in frustration, cutting your right hand.  You kicked the door.  You told your ex-partner to open the door or you would kill her (Charge 2 – make threat to kill). 

10Still in a heightened state, you elbowed the window next to the door which broke (Charge 3 – intentionally damage property).  As it did so, your partner was close by and glass from the window hit her in the face, glass becoming embedded there (Charge 4 - recklessly causing injury).

11You put your arm through the window, reaching for the door mechanism, but failing that you kicked the door and left (Charge 1 - aggravated burglary). 

12Perhaps unbeknownst to you at the time, but unsurprisingly, your children were inside and nearby.  They were understandably distressed by what you had done. 

13In what I find to be an insightful and gracious victim impact statement (Exhibit A), your ex-partner, spoke of the stress and fear you caused to the children.  She reports the children kept asking whether you were going to change and return to the person you used to be.

14Her statement confirms that your relationship had been a good one, but that your behaviour had deteriorated.  She looks forward to a time when you're able to manage the challenges you face and return to having contact.  In the meantime, she expressed hope that you would follow the court's advice and take necessary steps to this end. 

Procedural history

15In the hours after your offending, perhaps understanding the gravity of what you had done, you presented yourself to the police station at 9am that morning. 

16Police arrested you, interviewed you, and remanded you in custody.

17A magistrate granted you bail six days later on 31 July 2023.  You spent those six days in police cells.  I accept that that remand time was a hard consequence, but one that was immediate and entirely appropriate. 

18Your bail conditions upon release were onerous, involving reporting to the police station three days a week, a curfew, and other restrictions on your day-to-day life. 

19While you made no comment during your interview, you did not contest the charges against you, and pleaded guilty.

20Your guilty plea in my view demonstrates remorse.  It also confirms that you have taken responsibility for your conduct and shows your willingness to facilitate the court's processes.  The avoidance of a trial in a case such as this, avoiding the need for your ex-partner to give evidence at trial and the added stresses it would have caused your children, contributes substantially to the utilitarian value of your plea, which must be apparent in the sentence that I impose. 

21You also sought to have your case heard in the Koori Court and that sentencing conversation occurred in July 2024 in Mildura, in the midst of your community.

22Your family attended with you and you engaged in the conversation with your Elders in an appropriate way.  You did not seek to justify your conduct.  In my view, you expressed appropriate shame for what you had done. 

23While you admitted that your response to your offending included you secluding yourself at home and withdrawing from the community, you also agreed under the court’s supervision to attempt to re-engage with community and attempt to rebuild your life.

24The importance of such a conversation and your willing engagement in it has been recognised by the courts as a very significant process in taking responsibility for your offending.  It amounts to publicly engaging in a process of being held accountable, expressing shame and making a commitment to change. 

25On the part of the community, full participation in the conversation demonstrates a commitment to you making a new start and ensuring there is no return to the circumstances that gave rise to the offending.

26Doing so, particularly in the case of family violence, is an essential goal and underlies all of the law’s interventions in this often vexed context.  If participating in this unique community-focused Koori Court process achieves those purposes, then it will succeed in a way that sadly the courts do not always see when imposing a term of imprisonment. 

Personal circumstances

27You were born and raised in Mildura to parents who support you and who attended the Koori Court conversation.  You are one of five siblings and your family is significantly involved in your community, in and around Mildura.

28You completed Year 10 locally and after leaving school have worked consistently from your teenage years until now. 

29You have travelled, albeit not far from home to obtain work and you have worked hard, sometimes in physically demanding jobs.  Even though during COVID and following the time of this offending you isolated yourself, you have nevertheless returned to work.  I accept that this shows your underlying commitment to making a contribution to the community.

30I also accept that some of the jobs you have done show that you understand the importance of helping children grow and mature in community and to making a contribution as they in turn get older.  I can see that in the nature of the jobs you have done at schools and TAFE and with other related agencies. 

31You were a gifted sports person which assisted you to make those contributions, particularly in football and you have contributed to your clubs and supporting others in the game.

32You have no relevant criminal history.  As someone of your age, having remained offence free until a relatively mature age, I am satisfied that your offending was out of character. 

33I also accept that your experience of arrest, remand, bail and the court process has been a salutary one.  Since your arrest and the sentencing conversation, you have held down a job with the Victorian Medical Assistance Team, with what they describe as dedication and professionalism (Exhibit 2).

34You have engaged with the MDAS Men's Diversion Program and focused on alcohol and other drug support (Exhibit 3) and more recently, in the men's Deadly Dads Group with Connected Beginnings Mildura (Exhibit 4), all of those whilst under the court's supervision on bail. 

35You took the step of engaging with a psychologist, Dr Mirabel McConchie, who provided a report on your progress dated 26 November 2024 (Exhibit 5).  In it, she made observations about your developmental history, including what she described as the normalised presence of violence in the community in which you grew up and she spoke of your struggles with your mental health and drinking. 

36Her opinion was that you were suffering a major depressive episode at the time of the offending and that you had an alcohol use disorder, albeit now in partial remission. 

37She also noted the seriousness of your past attempts at self-harm.  Her treatment recommendations were that you continue counselling and support, in relation to drinking and that this may require longer term residential treatment if considered necessary.  I accept her opinions.

38Following the sentencing conversation and having monitored your progress and compliance with bail over the last eleven months, I had you assessed for a community corrections order.  It was a full assessment and it found you suitable for such an order and that you are only regarded as a medium risk of general offending, with a majority of risk factors being at the low level, but with elevated results in relation to alcohol and the need for leisure and recreation (Exhibit B).

39During the assessment, they regarded you as being open and honest, admitting your offending and accepting responsibility.  They accepted that you had not caused any further trouble for your ex-partner since the event.  They observed you to demonstrate remorse for what you did and some insight.  They recommend conditions relating to your drinking and your mental health needs, that should be monitored.  I accept that assessment.

Sentencing issues

40The maximum penalty for aggravated burglary is 25 years’ imprisonment.  For the threat and damaging property it is 10 years’ each and for the reckless injury it is 5 years’. 

41Objectively speaking, I find the gravity of what you did to be moderately serious.  Your angry intrusion into your ex-partner's and children's home, whilst unsuccessful, was no doubt terrifying to them.  Their home is where they are entitled to and should feel safe. 

42I accept that your conduct was not planned to any significant degree and that you did not persist in your disordered attempt to enter the home.

43I also accept that your mental state at the time was one of frustration and anger, triggered by a genuine but misdirected concern about a person posing an undesirable influence in the home. 

44I do not find that your conduct fell in the context of protracted or otherwise criminal activity.  In saying so, I do not accept or justify what you did in any way.  The likelihood that you were experiencing considerable depressive symptoms at the time is also a matter I have taken into account.  In all the circumstances I find your moral culpability for what you did to be moderate to high.

45The sentencing principles relating to general deterrence, denouncing what you did and justly punishing you apply to your case. Your sentence must, in its full context, indicate to others that substantial consequences will flow from any such conduct or event. 

46You are otherwise a person of good character and I have taken this into account.  It permits me to, along with all of the other things you have done since this night, take a certain approach to sentencing in the context of all of the issues and factors in the case.  I find your case to be somewhat unusual in those respects.

47I have not given great weight to the need for specific deterrence or community protection, but I am satisfied that these requirements will be met by the overall approach I will take. This includes your time on bail, your participation in the Koori Court conversation and the ongoing supervision of your efforts and work on bail since. 

48I have considered each of the offences and the fact that they all form part of a single incident and considered those matters when deciding the total orders that should be made.

49I have thought long and hard about the role that rehabilitation should play in your case.  The problems you faced, particularly with alcohol and that contributed to your offending, were not in my view simple or isolated.  Drinking has taken on a role in your life that is problematic.  I expect that you accept that.  I accept that you have not yet finally overcome those problems, but I do accept that you have intentionally and persistently engaged with services aimed to help you in that way.

50I am satisfied that you have developed insight into your problems in this respect and that this is an ongoing project for you and those around you.  The risk that you pose to the community is in my view, reduced because of that work that you are doing. 

51The prosecutor submits that only a sentence involving time in custody would be appropriate, or within range in this case.  I am satisfied that in the vast majority of cases that is true.  I am conscious that you have served six days in custody upon your initial arrest and that was a salutary lesson.

52Your counsel submits, based on the report from Corrections that you should be given the chance of serving your sentence in the community.  The Court of Appeal's comments in the case of Boulton[1] in my view support this, in the circumstances of this case. 

[1] [2014] 46 VR 308.

53Having given all of those matters considerable thought, I face the conundrum of whether at this stage in your rehabilitation, given your time on bail prior to the hearing and given the supervised bail that I have supervised over the past year, I should now at this stage place you back in custody.

54In what might be called a close case and with some reservations, but with the comfort of the options open to me on a community corrections order, I have taken the view that you are not to be returned to custody today. 

55In coming to that view, I have considered the fact that you were arrested immediately upon your turning yourself in to police and that you suffered a hard and serious consequence for these events and that was immediate.  In my view, police conduct on that day was absolutely warranted and entirely appropriate.

56Those remands, it must be said, offer the community support for a direct, swift and harsh consequence to family violence.  However, given the time that has passed and your conduct and engagement with appropriate support, including the sentencing conversation which I accept to have been genuine, I will impose a single community corrections order upon you for all four charges.  That order is with conviction, and it will last for two years.  You are to be supervised during that time, you must complete 200 hours of community work, you must engage in assessment and treatment for alcohol abuse and for your mental health.  Any hours you complete in assessment and treatment are to be credited against your community work hours. 

57As with any community corrections order, Mr Kirby, you run the risk of breaching that order if you do not turn up or continue to engage in treatment and the punishment aspects of the order.  If you do not comply with all of those conditions, you will be returned to court on a breach and I will have, by necessity, the option of resentencing you for all of the offending, including the breach – and imprisonment will loom large, very large, in such a case.  You should consider the next two years of your life on this order as being ones during which you are on probation before the court.  You have lived for the last one year on similar probation on bail. 

58Any breaches of this order will be taken seriously.  There must not be a return to any violence, whether family or otherwise.  Having said those things, I accept that you are well down the path away from this event and I have some considerable hope that you will complete this order and not return to court. 

59In accordance with s6AAA of the Sentencing Act, but for your guilty plea and recognising that this indication is somewhat artificial given the context of the guilty plea and the recovery and rehabilitation you have engaged in and the supervision you have undergone, I would have imposed two years imprisonment and fixed a non-parole period of twelve months. 

60I am sentencing you remotely from Melbourne and you are in Mildura.  The reports I have received are good.  I wish you well in engaging in this order and I hope and trust that I will not see you again on a breach.  If there are problems or difficulties that you face with meeting the conditions of the order, I encourage you to contact your lawyers and return the matter to court to have a further conversation about why and what should be done about it.  Do not leave it until a breach.

61Can I also encourage you, if those treating you recommend you enter a residential program in relation to drinking, that you take that seriously.  You will get support.  I think you have had an experience of such a program before and I would encourage you to engage in that if recommended.

‑ ‑ ‑