Director of Public Prosecutions v Kirby
[2020] VCC 1587
•10 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MILDURA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
KOORI COURT
Case No. CR-20-00259
CR-20-1196
CR-20-1197
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW KIRBY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 19 March 2020 | |
DATE OF SENTENCE: | 10 October 2020 | |
CASE MAY BE CITED AS: | DPP v Kirby | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1587 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing – home invasion (steal) – person present and theft – Koori Court Division – sentencing conversation – early plea of guilty – deferral of sentence – Category 2 offence – substantial and compelling circumstances – imposition of jail term equivalent to time served – imposed for the indictable offences of home invasion and theft – unrelated summary offences transferred pursuant to s243 of the Criminal Procedure Act 2009 – imposition of an adjourned undertaking with respect to fresh offending and Community Correction Orders varied to commence 1 October 2020 for 12 months on the same terms as those originally imposed in the Magistrates’ Court.
Legislation Cited: Sentencing Act 1991; Criminal Procedure Act 2009
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty | Ms A Hogan, Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms J Turfrey | MIR Lawyers |
HER HONOUR:
1 Andrew Kirby, you have pleaded guilty before me to one charge of home invasion (intent to steal) with a person present, in company with Joseph Blyth, and one charge of theft.
2 The offences are serious and that is reflected in the maximum penalties prescribed by law. Charge 1, home invasion, is a Level 2 offence, attracting a maximum penalty of 25 years’ imprisonment or 3,000 penalty units. Theft is a Level 5 offence, attracting a maximum penalty of 10 years’ imprisonment or 1,200 penalty units.
3 Charge 1, home invasion, is a charge that is a Category 2 offence pursuant to s5(2H) of the Sentencing Act 1991. In sentencing an offender for a Category 2 offence, a court must make an order under Division 2 of Part 3, that is a custodial order, unless there are compelling circumstances that are exceptional and rare and justify not making such an order.
4 Ms Turfrey, on your behalf, conceded that there was no evidence of any substantial and compelling circumstances in your case.
5 You have admitted your prior criminal history. It spans a period from 30 May 2005 until 3 July 2019 in Victoria and from 8 May 2007 to 20 October 2016 in New South Wales. There are convictions recorded in respect to various dishonesty offences, breaches of intervention orders, unlawful assaults, some fail to answer bail and possess drugs of dependence, for which you have received a variety of dispositions over the years, including without conviction adjourned undertakings, fines, Community Correction Orders and imprisonment in both Victoria and New South Wales.
6 I shall now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing.
7 In brief, the offending occurred on 6 July 2019 at approximately 3.45am. You attended a hostel for seasonal workers that is located at 126 Riverside Avenue, Mildura in company with, Joseph Blyth. You both entered the hostel living room via an unlocked door and walked into the kitchen of the premises. You removed four bottles of 4X beer and a Cambodian Beer from a fridge as well as some toys (Charge 2, theft). Tae Kyung An, was asleep in her bedroom, along with three other occupants, whilst you and your co-offender were trespassing with intent to steal from the premises (Charge 1, home invasion).
8 You both left the hostel and searched a vehicle and a large rubbish bin at the rear of the premises. Mr Blyth, re-entered the hostel and continued to search the premises. Other items, such as an Apple watch, wallet, clothing, a mobile phone and a backpack containing passports and personal items, were removed by him.
9 Ms An woke up later that day and noticed that some items were missing and reported the matter to police.
10 Following review of the CCTV footage, you were identified as the offender.
11 You were arrested and interviewed by police on 6 August 2019. You were co-operative and made admissions to entering the premises and stealing the beer and toys.
12 You entered a plea of guilty at a committal mention on 18 February 2020.
13 You were initially bailed but bail was revoked on 30 November 2019. You were charged with subsequent offences that have yet to be dealt with by the courts relating to breaches of FVIO and CCO’s.
14 Your co-accused, Mr Blyth, was arrested and interviewed on 16 July 2019. His matter is listed on 7 July 2020 for mention in the Magistrates Court.
15 Your matter proceeded in the Koori Court Division of this Court and a sentencing conversation was conducted in the presence of Aunty Raelene Drummond and Uncle Mark Bland on 19 March 2020. The Court of Appeal in Victoria has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1]
[1]See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
16 Following the sentencing conversation, arrangements were made for you to be released on strict conditional bail so that you could participate in a long-term 12-week rehabilitation program at the Wiimpatja Healing Centre.
17 The program is a wrap-around service provided by the Mallee and District Aboriginal Services (MDAS) and provides programs that address health, alcohol and drug counselling, well-being, living skills, short courses and farm activities.
18 The aim of the program is to offer a culturally safe place for offenders to work on underlying offending behaviours and difficulties away from the distractions of community and to assist and support transition back into the community.
19 On 20 March 2020 your sentence was deferred so that you could participate in the 12-week program so that your capacity for and prospects of rehabilitation could be better assessed, and to provide you with a chance to demonstrate that rehabilitation has taken place through your active participation in the program.
20 In formulating the appropriate sentence, I must have regard to the gravity of the offending. I accept that both the charge of home invasion and the theft charge represent the lowest level of seriousness for these types of offending.
21 Mr O’Doherty, the prosecutor, agreed with this finding at the plea hearing.
22 No Victim Impact Statement has been filed but common sense dictates that Ms An would have been upset to know that you had been present in the hostel and her possessions were taken.
23 I accept all the matters put on your behalf in mitigation by Ms Turfrey.
24 On your arrest you were fully cooperative with the police and made full admissions that you confirmed in your formal interview.
25 There is real utility in your plea. It was entered at an early stage. Through your plea you have avoided the cost and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
26 The plea demonstrates an acceptance of responsibility. I accept that you are genuinely remorseful and deeply regret your behaviour. You spoke about your shame in the sentencing conversation,
27 Importantly, the victim, Ms An, did not have to go through the trauma of having to give evidence and be cross-examined.
28 I accept that you offended in the context that you were homeless, hungry, and looking for food. Whilst that explains your behaviour it does not excuse the offending.
29 You are of Barkindji descent. You were born and raised in Wentworth in the Mildura region. Both parents were afflicted by alcoholism and tragically you witnessed domestic violence from an early age. Your upbringing was characterised by poverty and dislocation. Your father who is now deceased served terms of imprisonment because of his history of violence towards your mother. Tragically, many of your close male relatives have died through drug overdose and self-harm.
30 I accept that the impact of the depravation, abuse and other social disadvantage that occurred during your formative years was profound and that has not diminished with the passage of time and repeat offending. I have applied the principles of Bugmy.[2] The High Court recognised that “the effects of profound deprivation do not diminish over time and … are to be given full weight in the determination of sentence in every case.”[3]
[2]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
[3]Ibid, paragraph 42
31 You remain close to your mother and you also enjoy good support from other family members.
32 You have two children, a daughter aged 14 and a 13-year-old son, both of whom live with their mother in Mildura. They attend Chaffey Secondary College. It is your desire to become reunited with your children and to be a better role model for your children in the future.
33 During the sentencing conversation you expressed a keen desire to give up alcohol and drugs so that you may regularise your life. From about the age of 18, you have spent various times in and out of jail and you are ashamed of what you have done in the past.
34 Your lengthy and somewhat concerning criminal history reflects a life afflicted by drug abuse. You now want a more positive future free of drugs, living independently in your own home with positive relationships with your children. You want to obtain a driver’s licence and stop the cycle of re-offending and jail. You want to connect more with your culture.
35 Notwithstanding the link between your past offending and alcohol abuse and drug taking you have never previously been given an opportunity to attend a residential rehabilitation program aimed at undressing your underlying offending behaviours.
36 You successfully completed the program at the Wiimpatja Healing Centre. Wimpatja is located at Warrakoo Station in New South Wales, 80 kilometres from Wentworth, New South Wales on the Murray River and 110 kilometres from Mildura. It is managed by the Mallee District Aboriginal Services in Mildura.
37 The terms of your acceptance into the program were restrictive. You were not permitted, without approval, to attend Mildura. You were required to actively participate in all programs and obey all lawful directions by the Wiimpatja Healing Centre staff and obey rules and conditions for entering the program. You completed a timetable of programs that were all addressed at dealing with your underlining offending behaviours, as well as providing you with life skills delivered through the Elders Program, Healthy Life Skills sessions and alcohol and drug counselling sessions.
38 The conditions were quite strict, with no town visits, no visitors, no mobile phones and your ongoing involvement being dictated by your positive participation in the various programs.
39 Given those conditions, I have taken the 12 weeks that you have spent there into account in accordance with the principles enunciated in a case called Akoha. [4]
[4]Akoka v The Queen [2017] VSCA 214
40 The Court recognised in Akoha that the punitive nature of time spent in a residential rehabilitation facility post offence and pre-sentence was a form of detention that should be credited in the sentencing exercise.[5]
[5] Ibid [105],[109]
41 You have limited formal education. You completed Year 9 at Coonmealla High School and commenced, but did not complete, Year 10.
42 You have worked as a concreter and bricklayer.
43 You played football for Wentworth in the past and wish to take up football again.
44 Uncle Mark Bland spoke about your strong family during the sentencing conversation. He referenced your maternal grandmother, Peggy Thomas, as well as your Uncle Terry and your cousin, Darlene, both of whom work hard supporting community members in a positive way in community to keep them away from the justice system.
45 Uncle Mark urged you to reflect on your behaviour and to think about the impact of your offending on others. He highlighted that what you did was wrong and said that people are rightly concerned about such behaviour. He spoke to you about what you could expect at Warrakoo and the importance of looking after yourself so that you can look after others in the future. He advised you to be open to accepting help in the future.
46 During the sentencing conversation you indicated a desire to know more about your culture. Uncle Mark recommended that you seek the assistance of Elders in the Wimpatja program.
47 Aunty Raelene emphasised the need for you to earn respect from others. She encouraged you to take up this opportunity to learn from the Elders and to seek assistance, help and support, from the people who run the program. She spoke about making right choices and emphasised the need in the future for you to be drug free.
48 Aunty Raelene said that it is important that you get to know yourself. She said that it is necessary for you to know who you are, where you come from and where you are going so that you can make better connections in the future and be a better father and role model. She urged you to remain drug free and take up all the assistance that may be offered.
49 I consider that you genuinely participated in the Koori Court sentencing conversation and that is a mitigating factor to be taken into account in your favour.[6]
[6]Honeysett v The Queen (2018) 56 VR 375
50 Keith Hampton, Manager of Wiimpatja confirms in his letter 11 June 2020 that you successfully completed the Wiimpatja Healing Centre Program. You undertook all programs offered including the “Growing Strong, Staying Strong Program”. You worked in establishing connections with your family and completed alcohol and drug counselling. You engaged appropriately with the elders and especially enjoyed cooking.
51 Proper plans for the future have been put in place including medical support, ongoing drug and alcohol counselling, referral to the MDAS Mental Health Service for ongoing support and management and linkages to the Men’s Group and Housing Services.
52 You have now created a foundation for you to build on further to apply in the future.
53 Your success on the program reflects positive rehabilitation prospects. Given your significant and real progress I consider that you have reasonable rehabilitation prospects.
54 In formulating the sentence I must impose just punishment. I must also emphasise general and specific deterrence and community protection. I have had regard to all the mitigating factors and the very real efforts that you have made to address what has driven your offending. You have made remarkable progress and you have now built a solid foundation on which to build a better future for yourself, your family and your community. This provides for the best rehabilitation prospects and provides for community safety.
55 Given your positive progress and having regard to all the features in mitigation I consider that a sentence of imprisonment equivalent to time served is appropriate and just punishment in all the circumstances.
56 The formal court orders in relation to indictment K13098827 are:
57 In respect to charge 1, home invasion and charge 2 theft you will be convicted and sentence to an aggregate term of imprisonment of 110 days. I declare 110 days pre- sentence detention.
58 S6AAA declaration: But for your plea of guilty I would have imposed a sentence of 12 months imprisonment.
59 Following the deferral of sentence, an application was made for summary charges to be transferred to this Court pursuant to s243 of the Criminal Procedure Act 2009. Four charges were prosecuted.
60 There is one charge of going equipped to steal where the informant is McIntyre. This relates to offending on 30 September 2019. You found by police in a public carpark and when you were spoken to, you admitted that you were in possession of a screwdriver in your pocket.
61 Where the informant is Bertalli, there is one charge of contravene Family Violence Intervention Order on 25 September 2019 where the informant is Bertalli. This relates to an occasion when you were present at your mother’s home contrary to a condition of the Family Violence Intervention Order that was in place in relation to her. There is a charge of fail to answer bail on 2 October 2019.
62 There is one charge of threat to destroy or damage property, relates to an occasion on 8 July 2019 when you were at your mother’s residence and you were asked to leave and refused to do so, and threatened to burn her house down.
63 There is one charge of contravention of Community Correction Order, where the informant is Jackson. This relates to contravention of two orders that were in place which were imposed by the Mildura Magistrates’ Court on 7 November 2018. One Community Correction Order concerned a work only order whereby you were ordered to perform 60 hours of unpaid community work (case no: 201808087). The other Community Correction Order involved an order for 12 months where supervision, assessment and treatment for drugs and alcohol, mental health and offender behaviour programs was imposed.
64 Finally, there is one charge of a fail to answer bail where informant is Bertalli on 2 October 2019 that is to be struck out. Ms Turfrey, on your behalf, confirmed with the court that pleas of guilty were entered in respect to each of the transferred charges, and that the summary provided by the prosecution was accepted. She confirmed that the contravention of the two Community Correction Orders was constituted by breach of the conditions and further offending.
65 The contents of the report from the Mildura Community Correctional Services dated 19 September 2019 was admitted.
66 You have had difficulty maintaining your engagement with Community Corrections because of your homelessness and the associated lack of stability and also you have lapsed back into drug use.
67 The contravention report notes that further offending was committed during the operational periods of both orders for which you received time in custody being equivalent to time served.
68 On 26 March 2019, at Mildura Magistrates’ Court, you were dealt with in respect to contravene a Family Violence Final Intervention Order, fail to answer bail and drunk in a public place, for which you were sentenced to 40 days’ imprisonment, with time held in custody of 50 days reckoned as time already served.
69 On 3 July 2019, at Mildura Magistrates’ Court, you were dealt with in respect to contravention of Family Violence Orders and fail to answer bail, possess cannabis and possess methamphetamines, for which you were sentenced to one month imprisonment, with time held in custody of 38 days reckoned as time already served.
70 You have not completed any of the 60 hours community work ordered in relation to case no: 201816321.
71 James Jackson, Aboriginal Case Manager, supervised by Lauren Pollock at Mildura Correctional Services, recommended that both Community Correction Orders be varied to recommence.
72 Ms Turfrey, on your behalf, confirmed that you accept those recommendations.
73 Since the plea hearing on 19 March 2020, there has only had one further attendance at court. On 17 September 2020, at Mildura Magistrates’ Court, you were convicted and sentenced to two days’ imprisonment in respect to damaging property. You were observed by a police inspector breaking into a vehicle in a public area in Mildura.
74 As was discussed on 1 October 2020, you informed the court that this is the longest period that you have had out of custody for your adult life. You are anxious to obtain further support and have expressed a willingness to attend Ward 5 at the Mildura Base Hospital in order to detox, so that you could be considered eligible to attend the Wulgunggo Ngalu Program in Yarram. You are anxious to continue your rehabilitation.
75 Unfortunately, due to the restrictions imposed by COVID-19, Wulgunggo Ngalu Learning Place in Yarram is currently accepting referrals but offers of assessment have been delayed. There are many outstanding referrals to be processed as a result. All potential participant offers of assessment and attendance to Wulgunggo Ngalu are guided by an identified COVID-19 safe travel plan, safe travel options and transport availability, as well as in accordance with travel restrictions, including “reasons to leave home”.
76 The sentences in relation to the summary charges are as follows.
77 In relation to Charge 1, Informant McKintyre, going equipped to steal, Charge 2 Contravene Family Violence Intervention Order, Informant Bertalli on 25 September 2019, Charge 3, Informant McBain threat to destroy or damage property on 8 July 2019 and Charge 4, fail to answer bail on 2 October 2019, you will be convicted and placed on an adjourned undertaking to be of good behaviour for six months commencing from today’s today, 1 October 2020. Indictment K13099026 – Informant Bertalli – Charge 1 – fail to answer bail on 2 October 2019 will be struck out. You have verbally consented to the imposition of that order and that will be noted in the records of the court.
78 In relation to the two contraventions of a Community Correction Order, those contraventions are found proven and the orders are varied to recommence on today’s date, 1 October 2020. They are for 12 months’ duration. The first Community Corrections Order relates to case no: 201816321 and is for a duration of one year with a work component of 60 hours. In relation to case no: 201808087, the Community Correction Order is for one year with supervision and treatment and assessment for drugs and alcohol and mental health, as well as offender behaviour programs.
79 Your participation in Wulgunggo Ngalu is a voluntary one. The court made it clear to the correctional services officer present in court, that every effort should be made to support you to ensure that you are placed on the list of potential people to be assessed and offered attendance to Wulgunggo Ngalu if practicable. You are anxious to be able to attend Wulgunggo Ngalu and have indicated your willingness to submit to detoxification at Ward 5 at the Mildura Base Hospital to facilitate this.
80 You indicated directly to the court that you understood the nature of the Community Corrections Order and the orders made by the court today. You understand what will happen in the event that you do not comply with the conditions, or if you re-offend within the next 12 months by way of committing an indictable offense. You have indicated your verbal consent to those orders being made and this will be noted in the records of the court.
81 The court explained to you what the consequences were for contravention.
82 You have an appointment to see Ms Elleen McGowan at the Mildura Office of Corrections at 59 Madden Avenue, Mildura at 2.00pm on Friday, 2 October 2020, where she will induct you into the service and confirm the arrangements for you. You advised the court that you do not possess a mobile phone, and Ms. McGowan has indicated that one will be made available for you, so that you can comply with your Community Correction Order.
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