Director of Public Prosecutions v Kirby
[2021] VCC 810
•15 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MILDURA
CRIMINAL JURISDICTION
CR 20-01203
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TOM KIRBY |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
WHERE HELD: | Mildura |
DATE OF HEARING: | |
DATE OF SENTENCE: | 15 June 2021 |
CASE MAY BE CITED AS: | DPP v Kirby |
MEDIUM NEUTRAL CITATION: | [2021] VCC 810 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
For the Accused | Mr S. Kennedy | Robyn Greensill & Associates |
HIS HONOUR:
1Tom Hartley Kirby, you have pleaded guilty to one charge of destroying property, one charge of common law assault, one charge of causing injury intentionally, one charge of resisting an emergency worker on duty, and two charges of possession of a drug of dependence. Those crimes carry maximum penalties of 10 years, five years, 10 years, five years, one year and a monetary penalty respectively.
2You also pleaded guilty to one uplifted charge of trespass and on that charge, I simply sentence you to be imprisoned for a period of 21 days to be served concurrently with the sentence imposed upon the indictment.
3You are now 32 years of age. You pleaded guilty to a settled indictment. Remorse will be somewhat problematic, but you obviously must get the utilitarian benefit of that plea of guilty. I accept that in your current state of not having used now for a year that you probably do regret what you have done and have a genuine intention to try and reform. You do have a very significant criminal history. You have been gaoled for violence before. You spent up to, at one stage, 17 months as I understand it in prison for various crime of violence.
4What I am about to sentence you for here does involve an element of domestic violence and that adds to the seriousness of it. It also calls for obviously the application of general and specific deterrence as well as denunciation and appropriate punishment. The situation is that it has occurred within a milieu and I take that into account as best I can.
5Firstly, in terms of summarising the matters, in February of 2020, a Mr Humphrey and his sister were at a residence in Swan Hill and also present at the house was someone by the name of Tegan Kirby. You were known to all. At around 12 noon on 26 February 2020, Mr Humphrey was in his bedroom when he noticed a male jumping the back fence and running towards the house. He saw this on the CCTV camera footage on the television in his room. He alerted his sister who heard a loud bang and rang Triple 0. While all this was taking place, there were a number of bangs and the camera or cameras were damaged.
6Police arrived and reviewed the CCTV footage at which point you were recognised as being the male who had committed the damage.
7About 10 minutes after the damage, Ms Casey received a message from you stating, 'What, are you going to call the cops?' At 12.24, police were still at the address. She received another text message from you. You stated, 'Look, you give me an eight ball. Give it to Mick to give it to me and I'll leave you, otherwise I'll put a bigger hold in your pocked than that. Think about it, add it up for all the bullshit lies you told me and act you put on as a friend.'
8I assume from all that this is all somehow drug related. The CCTV will tend to support that as well. But in any event, what you did you cannot do. And I daresay the occupants of the house were very concerned.
9Charge 2 involves an ex-partner, Rikki Atkinson, and she lived intermittently with you and your two children at various addresses in Swan Hill. At approximately 9 am on 24 April 2020, she was in the lounge room with the two children and you were sleeping in her bedroom. After speaking with her daughter, you left the bedroom and came into the lounge room, grabbed Ms Atkinson and pulled her to the ground with both hands and began verbally abusing her. You then grabbed her by the hair. Her daughter entered the room and observed her mother crying. You then let go of her and her grandmother attended the premises and called Triple 0.
10After police had arrived, you sent a message saying that you knew Maria had got the cops, 'Onto me. I'm going to run her down on Facebook.' Relatives then attended the house and Ms Atkinson and the children were taken away. The Crown opening has a little section of hearsay. I am sentencing on the basis of the common law assault where you were grabbing her by the hair and put her onto the ground.
11Charge 3 is intentionally causing injury which is the most serious of all these. At the time of this offending, an Amanda Jade Lily was living at an address in Swan Hill. At 8.25 pm on 10 June, she heard a loud bang, heard clicking at the metre box and saw various appliances beeping and turning off. She stood up and armed herself with a pair of scissors, which just happened to be on the coffee table, for protection if needed.
12She then opened the front door, saw it was you, opened the door a bit wider at which stage you suddenly struck her to the mouth and bridge of the nose with your right clenched fist. She fell to the ground. She said she did not have time to say anything before you hit her. You threw a number of punches at her while she was still on the ground and she tried to protect herself. She identified the voice of Ms Watts who was known to you and who at that time was your partner.
13She intervened in this - that is Ms Watts intervened in the assault, trying to get you to stop. Ultimately, it did stop, and you apparently threatened to throw one more punch.
14Shortly after you left, Ms Lily ran to Ms Watts to ask what it was all about, and in any event, was asked not to report the incident to the police but in the long run, she decided that she would. Police attended about half an hour later in the same evening and received statements from her. The injury caused was minor bruising to the eye area, a blood nose and cuts to her upper lip and chin. She did not need or seek medical treatment for her injuries.
15Charge 4 is resisting an emergency officer on duty. Essentially, what that comes down to is that police, with or without a warrant I am not too sure, raided an address where they believed you to be and went to arrest you. You were hiding under a bed. They dragged you out and essentially you wrestled with them. Ultimately, they handcuffed you and that gives rise to the resisting of the arrest as it would appear to be no real damage done in that altercation.
16On searching you, they found cannabis and they also found methylamphetamine which gives rise to Charges 5 and 6. The trespass as I understand it is related to the intentionally cause injury charge so far as Ms Lily was concerned.
17You have now been in custody for some 365 days.
18Tendered on your behalf was some very laudably succinct submissions as well as a report from Mr Bernard Healey as well as a letter from MDAS, as well as a letter from your partner Ms Watts and who I assume to be her mother. There is clearly an address that is owned by the mother. It is clear that you do have a place to go and what gives me confidence in your ability to at least make a proper effort this time to straighten yourself out is that MDAS will be taking you under their wing.
19Your background is that you are now 32 years of age. You are of Aboriginal descent. You were brought up in Swan Hill. There was violence in the family, alcohol abuse and you have gone through the usual trauma that young Aboriginal men in that circumstance endure. Certainly, in this situation, I do not have to go into great detail of all this, but it is certainly the situation where Bugmy applies. You have clearly been addicted to amphetamine. You had difficulties with alcohol from a very early age as well as cannabis.
20Clearly, your offending in these circumstances is brought about largely by the milieu in which you have obviously mixed, the use of drugs and the desperation and hopeless that all that provides. Your current situation is that MDAS are able to provide you with a number of services and have a letter from them. What they want to do is get you a justice worker, a men's case manager, mental health social worker and they will see you on alternate days meaning you will be engaged with appointments with a member of MDAS on four days of every week. As I say, I have a letter from Mr Warwick who is known to me from MDAS in Swan Hill. I have faith in their capacities.
21You have stable accommodation. You have now been dry for a year. It is a situation where you have been subject to COVID restrictions during the course of your incarceration and because of the sentence which I am going to give you, the benefits that those COVID lockdowns would have given you will probably disappear. But in any event, that is not a matter for me to concern myself about. It is not a matter I can take into account. The reality of it is, if I gave you 15 months, I would probably regard that as served as well. But be that as it may.
22Significantly, your partner Ms Watts and it would appear her mother are prepared to support you. You have a child who is now some months old who you have not seen with her. And she, as I understand it from the materials, is not addicted to drugs and has a very limited criminal history. Hopefully, that stability of having a small family and you remaining away from drugs and not associating with those who have used drugs with you in the past gives you a real chance of getting your act together, staying clean and obtaining work. You can read and write and there is no reason why you should not be able to work.
23I do not know what your situation is. You had a knee reconstruction some years ago. Whether you are still fit enough to play footy I do not know but obviously that would be a good thing if you could do it to get yourself into the community, hopefully in a situation where drugs are not the norm.
24As far as rehabilitation is concerned that is really up to you. Prospects of you reoffending are totally dependent on you not using drugs. The Crown submission was that a combination sentence of gaol served as well as a community corrections order would be appropriate.
25I have taken the view that in your particular situation where those programs are all ready to be put in place, I have much greater faith in your ability to succeed in those through you using Aboriginal services. And at the present time at least with COVID, working with Corrections is very difficult. There is very little one-on-one and I think that the difficulties of that would be too much for you in terms of a community corrections order and I am just simply going to leave that up to you, bearing in mind that you have already been in for a year and that is a very significant punishment in itself.
26Obviously, in these situations one does not load up a sentence for past criminal behaviour. But you must realise if you keep using and offending like this, at some stage or other, you are going to get a very long sentence indeed and as you would be fully aware, the average lifespan of an Aboriginal man in this State is 50. If you do not stop using, you will be dead by then or you will be doing a long time in gaol. They are all matters for you.
27Accordingly, taking all those matters into account and weighing up the various sentencing principles, and bearing in mind they are all different victims, on Charge 1, 30 days; Charge 2, 60 days; Charge 3, 200 days; Charge 4, 78 days; Charge 5, 30 days concurrent; Charge 6, convict and discharge.
28Charges 1 to 4 to be served cumulatively upon each other which gives a total of 368 days' imprisonment. That is a total effective sentence. I direct that 365 days be reckoned as having been served under this sentence.
29I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of 18 months.
30The disposal order is made and handed down. There is no other orders I need to make, gentlemen, are there?
31MR KENNEDY: No, Your Honour.
32HIS HONOUR: Yes, so 365 days. No. Right. Can she - I do not know whether your instructor is listening or not, Mr Kennedy. I have not got the thing in front of me at the moment, but could you get straight onto her that I have done this. My concern is that when they assess him at Fulham this afternoon, the COVID time might get rid of that three days I have just given him. I have given him the extra three days to get his act together to get back to Melbourne without resorting to drugs and the like. But I have got a sneaking suspicion - even though I am not allowed to think about it - that the COVID provisions might reduce that straight away. So if something could be - if Ms Watts could be told asap.
33MR KENNEDY: I will tell her, Your Honour.
34HIS HONOUR: If they let him go, the first train is going to be tomorrow morning.
35MR KENNEDY: Yes.
36HIS HONOUR: All right?
37MR KENNEDY: I will let her know immediately, Your Honour.
38HIS HONOUR: Yes. I do not know whether anyone at the gaol is listening. Put him on the Gippslander for me. All right.
39Yes, look, you have heard all that, Mr Kirby. It is up to you, my friend. All right?
40OFFENDER: Thank you. (Indistinct words.)
41HIS HONOUR: If you are going to knock around with bros who use, it is going to happen to you for the rest of your life. Take your pick. All right. Thanks. Thanks Mr Kennedy. Thanks Mr O'Doherty.
42MR KENNEDY: Thank you, Your Honour.
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