Kirby v The Queen

[2013] VSC 602

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0182 of 2013

IN THE MATTER of the Bail Act1977 (Vic)

and

IN THE MATTER of an Application for Bail by MALAKAI KIRBY

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JUDGE:	Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2013
DATE OF RULING:	31 October 2013
CASE MAY BE CITED AS:	Kirby v R
MEDIUM NEUTRAL CITATION:	[2013] VSC 602

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CRIMINAL LAW – Bail – Applicant on bail at the time of alleged offences – ‘Show cause’ situation – Indigenous applicant has spent 45 days in custody on charge of theft from shop of alcohol valued at $44 - Relevant prior convictions – Bail unopposed – Bail granted on conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J. Prior	Victorian Aboriginal Legal Service
For the Respondent	Ms J. Malobabic	Office of Public Prosecutions

HIS HONOUR:

1. Malakai Kirby applies for bail and, because he is charged with committing offences while on bail, he must show cause pursuant to s 4(4) of the Bail Act 1977 (Vic). Mr Kirby is charged with one charge of theft, stealing liquor to the value of $44 from a Coles Liquorland store in Bendigo.

1. The Crown no longer opposes the application, and I will grant bail.  Nevertheless, s (4)(i) of the Act requires that I give reasons for making an order admitting Mr Kirby to bail.

1. I note that Mr Kirby has five prior convictions for failing to answer bail, he has numerous convictions for dishonesty offences and by this, and another theft offence, he may have breached a suspended sentence. Mr Kirby proposes to plead guilty to the charge on which he in remanded but may contest the other matter.  He was admitted to bail on that other matter, hence the obligation to show cause.  He admits to being addicted to drugs and alcohol and has the typical prior conviction history of a person with an addiction.  These are matters that might be thought to warrant a refusal of bail.

1. However the consideration that favour granting bail in my view tip the scales.

1. First, Mr Kirby has spent 45 days in custody since he was initially charged with low level theft with a value of $45 to which he intends to plead guilty.  It is not likely that Mr Kirby will be sentenced to serve more time that he has already spent in custody. Both sets of charges are listed before the Bendigo Magistrates’ Court on 7 November 2013.

1. Second, the time he is presently spending in custody is not being served towards the breached suspended sentence.

1. Third, Mr Kirby, is indigenous and has strong family ties in the local community. In particular he has a young son for whom he is sole carer.  His son is currently being looked after by his sister, who is, apparently, struggling to do so on her own.  He is also at risk of losing his housing, as his rent has fallen behind while he has been incarcerated. I take those matters into consideration as required by to s 3A of the Act.

1. Fourth, Mr Kirby has not been exposed to drugs and alcohol while in custody and is in a good position to return to treatment.  I am informed that he is prepared to engage in drug and alcohol treatment.  Arrangements are being made with the Bendigo and District Aboriginal Cooperative, which is an organisation that covers a range of services within the Bendigo area including health, physical health, drug and alcohol treatment and other social supports.  He has two significant motivating factors to start and continue through with such treatment, firstly, the welfare of his son and secondly, to improve his prospects of a favourable outcome when he faces court on the breach of the suspended sentence.

1. Fifth, the informant does not oppose bail.

1. Finally, I propose to place special conditions on his bail which have been agreed between the informant and Mr Kirby.

1. Accordingly, I am satisfied that Mr Kirby has shown cause that his detention in custody is no longer justified.  I will grant Mr Kirby bail that requires him to attend at the Bendigo Magistrates' Court next Thursday, that is on 7 November 2013, at 9 .00am. 

1. The special conditions are that Mr Kirby is –

·to reside at 2/21 Ophir Street, Golden Square in Victoria, and not change his place of residence without further order of a court;

·to report every Monday, Wednesday and Friday, to the officer in charge of the police station at Bendigo, or his or her nominee, between the hours of 8 am and 6 pm;

·as soon as practicable, to attend the Bendigo and District Aboriginal Cooperative for drug counselling and to continue to attend and participate in such counselling or other therapies as may be recommended by them;

·not to contact directly or indirectly any witnesses for the prosecution other than the informant; and

·not to attend the Coles Liquorland Store in Lyttleton Terrace in Bendigo.