Director of Public Prosecutions v Kirby

[2018] VCC 432

IN THE COUNTY COURT OF VICTORIA      Revised
  Not Restricted
     Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02271

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTIAN KIRBY

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 April 2018
DATE OF SENTENCE:	6 April 2018
CASE MAY BE CITED AS:	DPP v Kirby
MEDIUM NEUTRAL CITATION:	[2018] VCC 432

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Wallace	OPP
For the Accused	Ms P. Smith

HIS HONOUR:

1Christian Kirby, at about 6.55 pm on 15 December 2016, you committed an armed robbery at the Bottlemart store at 9 Centre Way, Keilor East.

2When you entered the store you were wearing a balaclava, and you were armed with a large machete.  Allan Liang was working at the store with his mother,
Lin Che, and they are the victims in this case. 

3Upon entering the store, you approached the victims and said to Ms Che "Give me your money".  She turned to her son and said in Chinese "robber".  She picked up a wooden chair leg from behind the counter and gave it to her son.  You demanded cash, and Mr Liang said to you "Are you sure you want to do this?”

4You then apologised and stated that you were "going through a rough patch", and you had just broken up with your girlfriend.  You were shaking when you spoke.  You asked for $200, and Mr Liang replied that he did not have that much cash.  You then asked for a packet of cigarettes.  Mr Liang told you that he would give you the cigarettes if you stepped outside the shop.  You walked outside, and Mr Liang gave you the cigarettes.  You then left the scene.

5Mr Kirby, this is nasty offending.  You chose a soft target.  You were armed with a 60-centimetre long machete, and you tried to disguise yourself.  It is no surprise to read that the victims were distressed as a result of what happened.  Ms Che was particularly affected.  She was unable to work for three days, she has continued to suffer flashbacks, and she has had her sense of safety badly shaken. 

6Mr Kirby, the law regards this type of offending very seriously.  Normally general deterrence and punishment are central aspects of sentencing in this type of case, and offenders are frequently imprisoned. 

7Your counsel, Ms Smith, submitted that there were compelling reasons why I should make an order focusing on your rehabilitation rather than upon deterrence and punishment.  I agree with her submissions, and I do so for the following reasons.  First I accept that the offending was unsophisticated, and at a low level for an offence of this type.  It is significant that you did not follow up your initial demands with any threats.  Indeed, you agreed with Mr Liang's suggestion that you should leave the store in exchange for the packet of cigarettes.

8Secondly, you were only 18 years old at the time you offended.  You fall to be sentenced as a young offender.  You have no prior convictions, and you have no subsequent breaches of the law.  Given these circumstances, I do regard rehabilitation as the primary sentencing principle to be applied.

9Thirdly, you come from a family background that has been described as dysfunctional.  Your background is set out comprehensively in the psychological report of Mr Cummins.  I do not intend to repeat what he has said.  It is sufficient to note that given your background, it is to your credit that you have not been in trouble before. 

10Fourthly, I note Mr Cummins' recommendation that your rehabilitation would be enhanced if you were to receive ongoing mental health treatment and guidance in terms of employment.  This assessment about your mental health is consistent with other medical material that speaks to your depression and anxiety.  You clearly need support in this area.

11It is important for you to understand that your mental health problems are not assisted by the use of alcohol or drugs.  I was told by your counsel that you are currently drug-free.  That is a good thing.  It has to continue.  You need to understand that any relapse into drug or alcohol abuse will bring you back to court and if that were to occur, you would put yourself at risk of imprisonment.  

12Fifthly, it is a protective factor that you have stable accommodation.  You have that accommodation with Mr Anthony Strahan, who was your grandmother's former partner.  He has written a reference for you, and he indicates that he is willing to continue to support you in future.

13Finally, I am satisfied that you are very sorry for your criminal behaviour.  In addition, you made admissions to the police when you were arrested, and you pleaded guilty at an early opportunity.  You will be given appropriate credit for all these matters.

14Mr Kirby, in the circumstances, I have determined that the appropriate way to deal with you is to release you on a community corrections order.  Such an order will facilitate your rehabilitation.

15You are convicted and released on a community corrections order for a period of 15 months.  You are required under the terms of the order to attend the Sunshine Community Corrections service before 4 pm on Tuesday 10 April.  The order has the following special conditions: you must perform 60 hours of community work; you are to be under supervision for the period of the order; you are required to undergo treatment and rehabilitation for drug abuse and dependency, and alcohol abuse and dependency; you are required to undergo mental health assessment and treatment, and; you must participate in offender behaviour programs as directed. I also order that any hours of treatment and rehabilitation be counted towards your hours of unpaid community work.

16I order you to pay compensation in the amount of $23 to Allan Liang, and I make the disposal order sought by the prosecution.

17In a moment my associate will present you with the forms that you have to sign, acknowledging your willingness to participate in the community corrections order.  Just before she does that, I want to make it absolutely clear that you cannot commit any further offences whilst on the order, and that all the conditions on the order must be complied with.

18As I said to you before lunch, Community Corrections administer my order.  If you do not comply with the order, they will bring you back on a breach, and although I cannot say what would happen on a breach, I would be very unhappy with you, and you would put yourself at risk of a more significant order being made.  So it is important that you remain out of trouble, and that you work with Community Corrections to ensure that you do not get into trouble again.

19I cannot emphasise strongly enough how important it is for you to stay right away from drugs and alcohol.  Judges of this court see young men and young women frequently relapsing, and frequently getting into further trouble.  You do not want to be one of those people.  You want to be firm in your resolve to remain away from drugs and alcohol, all right?

20Now, my associate will get you to sign the papers.  But do you understand what has happened?

21OFFENDER:  Yes Your Honour.

22HIS HONOUR:  Do you have any questions?

23OFFENDER:  No Your Honour.

24HIS HONOUR:  All right.  No other matters?

25COUNSEL:  No Your Honour.

26HIS HONOUR:  Thank you both.

27COUNSEL:  If Your Honour pleases.

28OFFENDER:  Thank you Your Honour.

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