Director of Public Prosecutions v Kirby

[2016] VCC 1766

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

AT MILDURA
CRIMINAL JURISDICTION

CR -16-01393

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA RICK KIRBY

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2016
DATE OF SENTENCE:	23 November 2016
CASE MAY BE CITED AS:	DPP v Kirby
MEDIUM NEUTRAL CITATION:	[2016] VCC 1766

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Taylor	OPP
For the Accused	Ms C. Woodward (Plea) Mr H. Middleton (Sentence)	VLA

HIS HONOUR:

1Joshua Kirby, you have pleaded guilty to one charge of armed robbery.  One measure of the seriousness of this offence is its maximum penalty which is 25 years' imprisonment. 

2It is my task, as the sentencing judge, to impose upon you an appropriate and just sentence, after taking into account both the circumstances of your offending and the circumstances personal to you.

3The circumstances of your offending are comprehensively set out in the document entitled “Summary of Prosecution Opening” which the prosecutor read in open court.  I annexe that document to, and incorporate it in, these sentencing remarks.

4Briefly, in Swan Hill at 5.49 am on 17 April 2016, you were in company with the co-accused, Martin Carbone.  He called a taxi using a false name.  At 5.52 am the taxi driver collected both of you.  As he drove past George Lay Park, Carbone told him to stop.  When he turned to request the fare, you pointed what looked like a silver coloured revolver at his face.  Carbone then grabbed him from behind so he couldn’t move.  You demanded money whilst pointing the firearm towards him.  The victim was frightened, and thought that he would be shot and that he would die.  He had no way of knowing that the firearm was an imitation firearm.

5The victim gave you $600.  You made further demands for money and got out of the passenger door.  You again pointed the gun at the victim and demanded more money.  As your co-offender began to get out of the car, the victim put the car into drive and left the scene.

6You were arrested by police at 8.20 am.  The police located the imitation firearm a short distance from the place of arrest.  When interviewed by the police, you said that you had been using ice and marijuana prior to the offending and that you would not have committed the armed robbery in a "straight mind".

7Mr Kirby, you have committed a very serious offence against a vulnerable victim.  You targeted a taxi driver in the early hours of the morning.  Although the offending was not sophisticated and you wore no disguise, there was an element of pre-planning.  You were armed with, and produced, an imitation firearm.  You committed the offence with a co-offender who grabbed the victim from behind and stopped him from moving.  It was only when the co-offender moved to get out of the car that the victim was able to effect his escape.   

8The offence of armed robbery has been described as an offence that strikes terror into the mind of those who are at present at its commission.  This offence is no exception.  The victim has provided a victim impact statement in which he details the emotional and financial impact of the offending upon him.  He is slowly recovering emotionally.  He was unable to continue to work night shifts in his taxi and because of that, his income has been reduced.  

9In this case general deterrence – that is the need to deter others from engaging in this type of offending – is a paramount sentencing consideration.  Just punishment and denunciation of your behaviour are also highly relevant.  

10You have admitted a large number of relevant prior convictions.  They commence in 2009 with an appearance in the Children’s Court.  In 2011, you were placed on probation by the Children’s Court for offences that included make threat to kill and assault with a weapon.  In 2012, you appeared in the Mildura County Court for offences of aggravated burglary, recklessly cause injury, theft and assault, and you were released on a suspended sentence and a community corrections order.  The community corrections order had conditions that included assessment and treatment for drug and alcohol abuse and mental health assessment and treatment.  I have had the opportunity of reading the sentencing remarks of Judge Pilgrim in that case.  His Honour had received a number of positive reports on your progress, and he clearly took the view that you had good prospects of rehabilitation.  That is why he made the orders.  You subsequently breached the orders.  

11In April 2013, you appeared in the Swan Hill Magistrates’ Court for the offence of recklessly cause serious injury, and you were released on a community corrections order with numerous conditions designed to assist your rehabilitation.  You breached that order.  In September 2014 you appeared in the Swan Hill Magistrate’s Court for offences that included recklessly causing injury, intentionally cause injury, threat to inflict serious injury and contravene a family violence intervention order.  You were sentenced to an aggregate term of six months' imprisonment.  On 27 October 2014, you were sentenced to a total effective term of 12 months' imprisonment for breaching the orders made by Judge Pilgrim.  In February 2015, you again appeared at the Swan Hill Magistrates’ Court for offences of intentionally cause injury, contravene a family violence intervention order and commit an indictable offence whilst on bail.  You were also dealt with for a breach of suspended sentence.  You received a total effective sentence of six months.  

12Given this history, specific deterrence and protection of the community are also highly relevant sentencing considerations.

13I now move to matters that are relevant to your background.  

14You are now 24 years old.  You grew up in Swan Hill.  You come from a caring and supportive family.  You have four siblings and your sister Alice attended court to support you.  She provided a character reference on your behalf.  Your father also wrote a reference on your behalf.

15You had behavioural difficulties at primary school. You told Mr Simmons, a consulting psychologist, that you did not want to learn but preferred to be a bit of a bully and a "tough bloke.” 

16When you were in Grade 4, you were the victim of a sexual assault.  Mr Simmons, says this in his report – “While in about Grade 4, Mr Kirby said that he went to the house of a close friend of the family with his older sister.  An older male started touching Mr Kirby inappropriately while they were playing hide and seek, with Mr Kirby saying it happened on only the one occasion.  Several months later, he told his parents what had happened and the matter was subsequently reported to the police.  He undertook some counselling following this assault, but only attended several sessions and didn’t go back.  It appears that he struggles in dealing with this.”

17You behaved poorly in secondary school, with expulsions from both Swan Hill Secondary College and the local KODE School.  You were effectively educated to Year 8 standard.  Since then you have worked variously as a fruit picker, farm hand, painter or labourer.

18When you were 15 years old you entered into a relationship with Melissa Morgan.  The relationship lasted for three years.  There were two children from the relationship.  Your first child, a daughter, was stillborn.  Mr Simmons notes in his report that the loss of your child was quite traumatic for you, and you commenced from this time to use alcohol and cannabis heavily.  You had a second child, a son who is now six years old and residing with your parents.

19Mr Kirby, there is no doubt that your life has been blighted by alcohol and drug abuse since you were 15 or thereabouts.  There was a period of abstinence when you were on supported bail in late 2011 and early 2012. It was this period of abstinence that helped persuade Judge Pilgrim to make the orders he did in March 2012.  Unfortunately, you were unable to remain drug-free.

20You relapsed into cannabis abuse, and were introduced to methylamphetamine.  Inevitably, you became involved in further offending, and in June 2014 you were remanded in custody for violence-related offences.  As a result of various court sentencing orders that I have already referred to, you remained in custody until October 2015.  You told Mr Simmons that you struggled upon your release from prison and that your life was not structured.  Your drug use escalated and your parents took out an intervention order against you.  This provides the background in which the current offence occurred.  

21There are a number of matters in mitigation.  I deal with each in turn. 

22You entered an early plea of guilty.  In addition, your plea has spared the victim from the trauma and stress associated with giving evidence.  The plea has also saved the expense of a criminal trial.  I am satisfied that you are remorseful.  You will be given appropriate credit for all of these matters.

23You are still a relatively young man.  Rehabilitation is generally an important principle for the young offender.  However, in these circumstances, where you have been given opportunities to change your behaviour and failed to do so, and where you have also committed a very serious criminal offence, the principle becomes less prominent.  Whilst I am not saying that it has no role to play in this case, its weight is much less than it would otherwise be.

24I am guarded about your prospects for rehabilitation.  Clearly, your prospects of rehabilitation would be greatly enhanced if you were able to maintain a drug-free status.  You do have the advantage of strong family support.  You have turned your back on that support in the past.  It is to be hoped that you will not do so in the future.  You have also expressed the strong desire to be positively involved in the life of your son.  Again, that could only occur if you maintain a drug-free status.  It is to your credit that you have completed courses whilst on remand.  Urine screens have been tendered that indicate you are drug-free at the moment.

25In determining sentence I have taken account of the fact that you spent the first two weeks of your remand in police cells before being transferred to the MRC, and that until relatively recently, conditions in the MRC were onerous, with 23-hour lockdowns.    

26You consented to having this charge heard in the Koori Court.  In doing so, you agreed to participate in a process that involves appearing before Elders from the Koori community.  The process is described as a “sentencing conversation.”  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]  Participation in the process is not easy.  Indeed, it is challenging, and your active participation in the process is a factor that mitigates punishment.  It was obvious to me from the way you participated in the sentencing conversation that you were sorry for what you had done, and that you do have insight into the importance of remaining drug-free upon your release from prison.

[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.

27Mr Kirby, your counsel submitted that an appropriate order in this case would be a sentence of imprisonment, followed by release on a community corrections order.  I am not persuaded by the submission.  Notwithstanding the matters in mitigation, the nature of this offending requires me to impose a term of imprisonment that is commensurate with its seriousness.  Would you please stand?

28On the charge of armed robbery, you are convicted and sentenced to three years' imprisonment.   

29I fix a minimum term of 21 months before you will be eligible for release on parole.  I declare that you have served 220 days by way of presentence detention. 

30If you had pleaded not guilty and been found guilty after a trial, the sentence imposed would have been four years and a half years with a minimum term of three years and three months before being eligible for release on parole. 

31No other matters?

32MS TAYLOR:  No other matters, Your Honour.

33HIS HONOUR:  You can remove the prisoner, thank you. 

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