DPP v Kirby [2025] VCC 716

1. In the hours after your offending, perhaps understanding the gravity of what you had done, you presented yourself to the police station at 9am that morning.
2. Police arrested you, interviewed you, and remanded you in custody.
3. A magistrate granted you bail six days later on 31 July 2023. You spent those six days in police cells. I accept that that remand time was a hard consequence, but one that was immediate and entirely appropriate.
4. Your bail conditions upon release were onerous, involving reporting to the police station three days a week, a curfew, and other restrictions on your day-to-day life.
5. While you made no comment during your interview, you did not contest the charges against you, and pleaded guilty.
6. Your guilty plea in my view demonstrates remorse. It also confirms that you have taken responsibility for your conduct and shows your willingness to facilitate the court's processes. The avoidance of a trial in a case such as this, avoiding the need for your ex-partner to give evidence at trial and the added stresses it would have caused your children, contributes substantially to the utilitarian value of your plea, which must be apparent in the sentence that I impose.
7. You also sought to have your case heard in the Koori Court and that sentencing conversation occurred in July 2024 in Mildura, in the midst of your community.
8. Your family attended with you and you engaged in the conversation with your Elders in an appropriate way. You did not seek to justify your conduct. In my view, you expressed appropriate shame for what you had done.
9. While you admitted that your response to your offending included you secluding yourself at home and withdrawing from the community, you also agreed under the court's supervision to attempt to re-engage with community and attempt to rebuild your life.
10. The importance of such a conversation and your willing engagement in it has been recognised by the courts as a very significant process in taking responsibility for your offending. It amounts to publicly engaging in a process of being held accountable, expressing shame and making a commitment to change.
11. On the part of the community, full participation in the conversation demonstrates a commitment to you making a new start and ensuring there is no return to the circumstances that gave rise to the offending.
12. Doing so, particularly in the case of family violence, is an essential goal and underlies all of the law's interventions in this often vexed context. If participating in this unique community-focused Koori Court process achieves those purposes, then it will succeed in a way that sadly the courts do not always see when imposing a term of imprisonment.

1. You were born and raised in Mildura to parents who support you and who attended the Koori Court conversation. You are one of five siblings and your family is significantly involved in your community, in and around Mildura.
2. You completed Year 10 locally and after leaving school have worked consistently from your teenage years until now.
3. You have travelled, albeit not far from home to obtain work and you have worked hard, sometimes in physically demanding jobs. Even though during COVID and following the time of this offending you isolated yourself, you have nevertheless returned to work. I accept that this shows your underlying commitment to making a contribution to the community.
4. I also accept that some of the jobs you have done show that you understand the importance of helping children grow and mature in community and to making a contribution as they in turn get older. I can see that in the nature of the jobs you have done at schools and TAFE and with other related agencies.
5. You were a gifted sports person which assisted you to make those contributions, particularly in football and you have contributed to your clubs and supporting others in the game.
6. You have no relevant criminal history. As someone of your age, having remained offence free until a relatively mature age, I am satisfied that your offending was out of character.
7. I also accept that your experience of arrest, remand, bail and the court process has been a salutary one. Since your arrest and the sentencing conversation, you have held down a job with the Victorian Medical Assistance Team, with what they describe as dedication and professionalism (Exhibit 2).
8. You have engaged with the MDAS Men's Diversion Program and focused on alcohol and other drug support (Exhibit 3) and more recently, in the men's Deadly Dads Group with Connected Beginnings Mildura (Exhibit 4), all of those whilst under the court's supervision on bail.
9. You took the step of engaging with a psychologist, Dr Mirabel McConchie, who provided a report on your progress dated 26 November 2024 (Exhibit 5). In it, she made observations about your developmental history, including what she described as the normalised presence of violence in the community in which you grew up and she spoke of your struggles with your mental health and drinking.
10. Her opinion was that you were suffering a major depressive episode at the time of the offending and that you had an alcohol use disorder, albeit now in partial remission.
11. She also noted the seriousness of your past attempts at self-harm. Her treatment recommendations were that you continue counselling and support, in relation to drinking and that this may require longer term residential treatment if considered necessary. I accept her opinions.
12. Following the sentencing conversation and having monitored your progress and compliance with bail over the last eleven months, I had you assessed for a community corrections order. It was a full assessment and it found you suitable for such an order and that you are only regarded as a medium risk of general offending, with a majority of risk factors being at the low level, but with elevated results in relation to alcohol and the need for leisure and recreation (Exhibit B).
13. During the assessment, they regarded you as being open and honest, admitting your offending and accepting responsibility. They accepted that you had not caused any further trouble for your ex-partner since the event. They observed you to demonstrate remorse for what you did and some insight. They recommend conditions relating to your drinking and your mental health needs, that should be monitored. I accept that assessment.

1. The maximum penalty for aggravated burglary is 25 years' imprisonment. For the threat and damaging property it is 10 years' each and for the reckless injury it is 5 years'.
2. Objectively speaking, I find the gravity of what you did to be moderately serious. Your angry intrusion into your ex-partner's and children's home, whilst unsuccessful, was no doubt terrifying to them. Their home is where they are entitled to and should feel safe.
3. I accept that your conduct was not planned to any significant degree and that you did not persist in your disordered attempt to enter the home.
4. I also accept that your mental state at the time was one of frustration and anger, triggered by a genuine but misdirected concern about a person posing an undesirable influence in the home.
5. I do not find that your conduct fell in the context of protracted or otherwise criminal activity. In saying so, I do not accept or justify what you did in any way. The likelihood that you were experiencing considerable depressive symptoms at the time is also a matter I have taken into account. In all the circumstances I find your moral culpability for what you did to be moderate to high.
6. The sentencing principles relating to general deterrence, denouncing what you did and justly punishing you apply to your case. Your sentence must, in its full context, indicate to others that substantial consequences will flow from any such conduct or event.
7. You are otherwise a person of good character and I have taken this into account. It permits me to, along with all of the other things you have done since this night, take a certain approach to sentencing in the context of all of the issues and factors in the case. I find your case to be somewhat unusual in those respects.
8. I have not given great weight to the need for specific deterrence or community protection, but I am satisfied that these requirements will be met by the overall approach I will take. This includes your time on bail, your participation in the Koori Court conversation and the ongoing supervision of your efforts and work on bail since.
9. I have considered each of the offences and the fact that they all form part of a single incident and considered those matters when deciding the total orders that should be made.
10. I have thought long and hard about the role that rehabilitation should play in your case. The problems you faced, particularly with alcohol and that contributed to your offending, were not in my view simple or isolated. Drinking has taken on a role in your life that is problematic. I expect that you accept that. I accept that you have not yet finally overcome those problems, but I do accept that you have intentionally and persistently engaged with services aimed to help you in that way.
11. I am satisfied that you have developed insight into your problems in this respect and that this is an ongoing project for you and those around you. The risk that you pose to the community is in my view, reduced because of that work that you are doing.
12. The prosecutor submits that only a sentence involving time in custody would be appropriate, or within range in this case. I am satisfied that in the vast majority of cases that is true. I am conscious that you have served six days in custody upon your initial arrest and that was a salutary lesson.
13. Your counsel submits, based on the report from Corrections that you should be given the chance of serving your sentence in the community. The Court of Appeal's comments in the case of Boulton[1] in my view support this, in the circumstances of this case.
14. Having given all of those matters considerable thought, I face the conundrum of whether at this stage in your rehabilitation, given your time on bail prior to the hearing and given the supervised bail that I have supervised over the past year, I should now at this stage place you back in custody.
15. In what might be called a close case and with some reservations, but with the comfort of the options open to me on a community corrections order, I have taken the view that you are not to be returned to custody today.
16. In coming to that view, I have considered the fact that you were arrested immediately upon your turning yourself in to police and that you suffered a hard and serious consequence for these events and that was immediate. In my view, police conduct on that day was absolutely warranted and entirely appropriate.
17. Those remands, it must be said, offer the community support for a direct, swift and harsh consequence to family violence. However, given the time that has passed and your conduct and engagement with appropriate support, including the sentencing conversation which I accept to have been genuine, I will impose a single community corrections order upon you for all four charges. That order is with conviction, and it will last for two years. You are to be supervised during that time, you must complete 200 hours of community work, you must engage in assessment and treatment for alcohol abuse and for your mental health. Any hours you complete in assessment and treatment are to be credited against your community work hours.
18. As with any community corrections order, Mr Kirby, you run the risk of breaching that order if you do not turn up or continue to engage in treatment and the punishment aspects of the order. If you do not comply with all of those conditions, you will be returned to court on a breach and I will have, by necessity, the option of resentencing you for all of the offending, including the breach - and imprisonment will loom large, very large, in such a case. You should consider the next two years of your life on this order as being ones during which you are on probation before the court. You have lived for the last one year on similar probation on bail.
19. Any breaches of this order will be taken seriously. There must not be a return to any violence, whether family or otherwise. Having said those things, I accept that you are well down the path away from this event and I have some considerable hope that you will complete this order and not return to court.
20. In accordance with s6AAA of the Sentencing Act, but for your guilty plea and recognising that this indication is somewhat artificial given the context of the guilty plea and the recovery and rehabilitation you have engaged in and the supervision you have undergone, I would have imposed two years imprisonment and fixed a non-parole period of twelve months.
21. I am sentencing you remotely from Melbourne and you are in Mildura. The reports I have received are good. I wish you well in engaging in this order and I hope and trust that I will not see you again on a breach. If there are problems or difficulties that you face with meeting the conditions of the order, I encourage you to contact your lawyers and return the matter to court to have a further conversation about why and what should be done about it. Do not leave it until a breach.
22. Can I also encourage you, if those treating you recommend you enter a residential program in relation to drinking, that you take that seriously. You will get support. I think you have had an experience of such a program before and I would encourage you to engage in that if recommended.

[1] [2014] VSCA 342; [2014] 46 VR 308.