Director of Public Prosecutions v Kirby

[2016] VCC 720

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

AT BENDIGO
CRIMINAL JURISDICTION

CR -16-00117

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALAKI KIRBY

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	26 May 2016
DATE OF SENTENCE:	26 May 2016
CASE MAY BE CITED AS:	DPP v Kirby
MEDIUM NEUTRAL CITATION:	[2016] VCC 720

REASONS FOR SENTENCE
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Subject: Attempted theft, theft.

Sentence: 2 year community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr W. May

Pages 1 - 8

 

 

HIS HONOUR: 

1Malaki Kirby, you have pleaded guilty to a charge of attempted theft and a charge of theft.  These offences occurred on 11 August 2015 when you acted in company with a young offender, Steven William Moore.  The maximum penalty for theft is ten years' imprisonment and the maximum penalty of attempted theft is five years' imprisonment.  At the time you pleaded guilty to each of the charges, you also admitted a lengthy criminal record.

2You are now 29 years of age and your criminal record goes back to August 2004, when you were 18 years of age.  You have had 14 prior court appearances in which you have been convicted of a number of offences of a dishonesty kind, including theft, robbery and armed robbery and motor vehicle offences amongst others.

3In the past, you received dispositions in the form of suspended sentences and community based orders.  You have been given every opportunity to turn your life around and each time you have been given the opportunity, you appear to have shunned the opportunity given.

4Your offending, though serious, was somewhat amateurish, if not laughable in some ways.  Part of the evidence against you was an audio visual recording of you driving what might be described as the getaway car.  Your role was to drive to two destinations.  First was a hotel, the second an RSL club in Bendigo.  On each occasion Moore got out of the car and attempted to rob those inside of money.

5At the hotel, his attempts to steal cash were thwarted.  At the RSL, he got away with $600 after producing a knife.  Moore was dealt with by Judge Lawson in this court and was the recipient of a community corrections order by way of disposition.  He was, as I say, sentenced as a young offender and his criminal history pales in comparison with yours.  That is understandable because he was much younger.

6The prosecution proceeded with these charges against you because it could not prove beyond reasonable doubt that you had knowledge that Moore was armed with a knife.  In consequence, the charges against Moore were at a more serious level.

7You have pleaded guilty to the charges and you indicated that you would do so at the first available opportunity.  For that, you are entitled to a reduction in sentence.  You have saved the time and cost of a trial and all that that entails, including calling the victims of these crimes.  The case against you proceeds on a concert basis.  Your role was to drive the car.

8Mr May who appeared on your behalf provided to me a helpful chronology which sets out in part your background to which I now turn.  You were born in Melbourne on 27 August 1986.  You are one of seven children.  You are of Aboriginal descent.  Your family moved to the Robinvale area when you were young.  You left home in about 2001 when you were aged about 14 or 15 and you led a transient existence in the Mildura Swan Hill area for a number of years.  It was during that time that you turned drugs and you developed a heroin and amphetamine habit.  You also have a drinking problem.  Although I note when you were assessed for a community corrections order today, you denied any current drug use and minimal alcohol use.

9OFFENDER:  Since I've been released.

10HIS HONOUR:  Just remain seated and keep quiet if you would please, Mr Kirby.

11OFFENDER:  Sorry.  Sorry, Your Honour.

12HIS HONOUR:  You were first sentenced to a term of imprisonment in June 2007, when you were 20 years of age.  Upon release, you moved to the Bendigo area, where you met your partner, Bianca Rose.  She is the mother of your two children.  Bianca Rose is also in trouble with the law and as I understand it from the papers, is currently serving a term of imprisonment.  The children are subject to protection orders by the Department of Human Services.

13You committed these offences on 11 August.  You were arrested and interviewed and charged and remanded on these offences.  But overtaking them was a sentence imposed by the Bendigo Magistrates' Court for earlier offending.  That is offending that preceded this offending.  As a result of that appearance, you received a term of imprisonment of 135 days and were released from custody in February of this year.  When you were arraigned and asked for your occupation, you described yourself as a bricklayer.

14Mr May filed with the court and I marked as exhibits a number of documents.  The intent in doing so was to show me that you have taken some steps to change your ways and to rid yourself of drugs and alcohol.  In argument, I described those steps as tentative, and I think they are just that.  One of the things that you have done is that you have been assessed and commenced to undertake a course conducted by SalvoCare called Building Bridges and you have attended two such sessions.  Tentative though it is, it is a step in the right direction.  You have also attended at the Bendigo and District Aboriginal Co-operative where you have engaged in some volunteer work and showed some signs of wanting to address your problems and to seek assistance from that organisation.

15A report from one Sheena Coughlan says in part that you engaged well with that organisation, that you were consistent and took some clear positive steps towards addressing your lifestyle issues during the time in which you were engaged.  She says, "I'm of the view that Malaki has strong potential to overcome his substance use and criminal offending and has good prospects for rehabilitation in the community with the right support."

16When I first read these papers, my overwhelming view was that you should be sent to prison.  However, thanks to the efforts of your counsel, I have been persuaded to back away from that course.  Mr May asked me to impose a community corrections order.  He asked me to do so even though the assessment makes clear that you are assessed as a high risk of reoffending.  I appreciate that I am taking some risk in imposing such a disposition which I will.  However, there will be strict conditions imposed including judicial monitoring.

17The Court of Appeal in Boulton has effectively told all judicial officers in this state that all of the purposes of sentencing can be achieved through a community corrections order.  With that in mind, I am prepared to take the risk of imposing such a disposition on you in the hope that it will provide you with one last chance to see the error of your ways and also to realise that you are the only one who can do anything about your life.  I take into account that you have had a somewhat tragic background and that you are of Aboriginal descent and life has not been easy for you.

18Having taken all that into account, I will impose a community corrections order.  On each of the charges, you will be convicted and sentenced to a term of imprisonment of 35 days.  I declare that there has been 35 days' pre-sentence detention and that 35 days be reckoned as having been already served under the sentences passed this day.

19MR CORDY:  I think it was 31 days, Your Honour.

20HIS HONOUR:  It was too.  I beg your pardon.  On each charge, you will be sentenced to 31 days' pre-sentence detention and I declare that 31 days' pre-sentence detention will be reckoned as having been already served and deducted administratively.  I make a community corrections order with conviction for a period of two years commencing this day.  There will be the following eight conditions.  One, judicial monitoring.  Two, that you undertake 200 hours unpaid community work.  Three, supervision.  Four, that you undergo assessment and programs to prevent reoffending.  Five, that you undergo programs and assessment to address your alcohol and drug use.  Six, that you continue to attend upon Dr Miza at the Tristar Medical Group once per month and take any medication prescribed by him or as directed by him.  Seven, you are not to associate with Steven Moore and eight, you must complete the Building Bridges program conducted by SalvoCare.

21Do you understand all those conditions?

22OFFENDER:  Yes, Your Honour.

23HIS HONOUR:  You seem somewhat reluctant.

24OFFENDER:  No.

25HIS HONOUR:  You think it is a bit rough, do you?

26OFFENDER:  Nah, nah.  I'll do it.  Take it as a wakeup call.

27HIS HONOUR:  I'm sorry.

28OFFENDER:  I've taken it as a wakeup call.  I know what - what I've gotta do.

29HIS HONOUR:  Well we will see.  You see that now that I have sentenced you and I have made the judicial monitoring condition, you are on my watch, you understand?  And I am going to keep a check on you every three months for the next two years and if it is brought to my attention on any one of those hearings that you have either reoffended or not complied with any of these conditions, I will resentence you.  Do you understand?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  Are you sure?

32OFFENDER:  Yes, Your Honour.

33HIS HONOUR:  Do you want to enter into a community corrections order with those conditions?

34OFFENDER:  Yes.

35HIS HONOUR:  You still seem a bit reluctant.

36OFFENDER:  Yeah, no, yeah I ‑ ‑ ‑

37HIS HONOUR:  You will.

38OFFENDER:  I'm very keen, 100 per cent.

39HIS HONOUR:  Very well.  Just have a seat whilst we draw up the paperwork.

40MR CORDY:  In addition, Your Honour, there is a mandatory licence interference on the dangerous driving charge.  I beg your pardon.

41HIS HONOUR:  That was ‑ ‑ ‑

42MR CORDY:  Too many matters today, Your Honour.

43HIS HONOUR:  Too many matters, all of a similar kind.

44MR CORDY:  Yes, they just morph into one another.

45HIS HONOUR:  Yes, they do.  One has to be careful.

46MR CORDY:  I beg your pardon.

47HIS HONOUR:  That is all right.  Perfectly understandable, I have been doing the same thing myself.  There has also been an order for compensation to pay the Bendigo RSL $600.  Is that opposed?

48MR MAY:  No, Your Honour.

49HIS HONOUR:  It not being opposed, I have signed that order.

50MR CORDY:  Thank you, Your Honour.

51HIS HONOUR:  Mr May, you will note that the first date is not three months hence.  It is 29 July at 9.30.

52MR MAY:  Yes, Your Honour, I see it.

53HIS HONOUR:  He will have to come to this court and it will be arranged for a video link to Melbourne.  I'll be in Melbourne.

54MR MAY:  Certainly, Your Honour.

55HIS HONOUR:  Do you understand?

56MR MAY:  Yes, Your Honour.

57HIS HONOUR:  It is on that day because I am going on some well-earned leave at that time and I will not be able to fit in with the three month regime, do you understand?

58MR MAY:  Certainly, Your Honour.  And I will remind Mr Kirby about all of that.

59HIS HONOUR:  Yes and then when you come next time, Mr Kirby, you will be given another day that you will have to come back.

60OFFENDER:  Yep.

61HIS HONOUR:  And then another date after that, do you understand?

62OFFENDER:  Yep, I understand.

63HIS HONOUR:  Just wait there if you would.  Just wait there.  Now, Mr Kirby, you have just signed up to a very strict regime.  Do you understand that?

64OFFENDER:  Yes, Your Honour.

65HIS HONOUR:  And if you slip up, it will be at your cost, do you understand?  The slightest slip and it comes back before me, do you understand?

66OFFENDER:  Yeah.

67HIS HONOUR:  And I will not forget.  So we keep all the papers, I have got all my notes.

68OFFENDER:  Yep.

69HIS HONOUR:  So I will remember the case very clearly.

70OFFENDER:  Yeah.

71HIS HONOUR:  So I wish you well.

72OFFENDER:  Yeah.

73HIS HONOUR:  But whether or not you succeed is entirely up to you.

74OFFENDER:  Yeah, you won't get notice of bugs from me.

75HIS HONOUR:  Sorry?

76OFFENDER:  You won't get notice of bugs from me.  I'll be on my best behaviour.

77HIS HONOUR:  Well I am glad to hear that.  It is the best news I have heard all day.  Very well, on the rising of the court, you are free to go.

78OFFENDER:  Thank you, Your Honour.

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