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[2024] ACTSC 43
Supreme Court of the ACT
2024-02-26
Berman AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Malibe Citation: [2024] ACTSC 43 Hearing Date: 26 February 2024 Decision Date: 26 February 2024 Before: Berman AJ Decision: Suspended sentence of imprisonment imposed, see [41] Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – aggravated burglary – theft by way of joint commission – damaging property by way of joint commission – young offender – focus on rehabilitation – commercial premises rather than residential premises – financial hardship – all property recovered and undamaged – utilitarian value of guilty plea – suspended sentence of imprisonment imposed Legislation Cited: Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT) s 10 Cases Cited: R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 Parties: Director of Public Prosecutions Alan Hiribee Malibe (Offender) Representation: Counsel A Brown (DPP) A Doig (Offender) Solicitors ACT Director of Public Prosecutions InPrivate Law (Offender) File Number: SCC 287 of 2023 BERMAN AJ: Introduction
Although the offender in this matter appearing for sentence today, Alan Hiribee Malibe, is over the age of 18, he is still very much a young offender. There is no bright line of maturity that people achieve on their 18th birthday.
In this case, the offender committed offences whilst he was 20 years of age and is now only 21. He is to be regarded, and I will regard him, as a young offender and a person who should be assisted by the Court to rehabilitate himself rather than focus on punishing him.
Facts
In the early hours of 1 March 2023, the offender and another man, who is to be sentenced in the near future, went into the Westfield Shopping Centre at Belconnen. They intended to steal from premises inside the shopping centre.
They made their way in by prying open glass sliding doors which, unfortunately for the offender, but fortunately for everyone else, allowed him to be identified because he left his fingerprints behind on those sliding doors, those fingerprints being found later that day.
It seems that Mr Malibe and his co-offender were intent on stealing from an electronics shop located within the shopping centre. Also in the shopping centre were cleaners. The two young men therefore had to crouch behind various things to avoid being detected by the cleaners. They were also being observed by security personnel who were monitoring the CCTV footage and who contacted police.
Without ever actually breaking into the electronics store, the offenders left, probably after realising that cleaners would observe any attempt by them to do what they planned to do. They ran back to where the car they had come in was parked. Police located them. At that stage, they were unable to confirm that the two men they were speaking to were the same two men who had been seen on the CCTV footage and so the young men were allowed to leave.
Having been thwarted in their efforts on 1 March 2023, the two offenders, as well as a third male, went back to the same premises on 21 June 2023. This time they were more successful, although not completely so.
They got through the doors of the shopping centre the same way and approached the electronics store. They used an angle grinder in an attempt to cut the security screen gate. They kicked at the screen gate. They used an axe which one of them had brought in order to hack at the glass shopfront to the right of the security screen gate. They kicked that glass as well.
Eventually, through the combined efforts of the axe and the three young men kicking the glass, they were able to make a hole in the glass which enabled two of them, this offender and the co-offender for sentence, to enter the electronics store.
Whilst there, they took approximately 46 mobile phones, the value of those phones being $14,767. They left the way they had come.
They didn't get very far, however. Police saw them and arrested them. They recovered the mobile phones. The axe head and the angle grinder were found inside the shop.
The offender was arrested that day and granted bail in the Magistrates Court.
Subjective features
The offender has not spent any time in custody.
He is a man of no prior convictions.
In addition to his character being observable in that respect, a reference was tendered from the coach of his rugby league team who describes Mr Malibe as courteous, reliable and an honest young man who has a terrific work ethic both on and off the field.
Mr Bradley, the coach, says: [I]t's no surprise to me that he is ready to accept responsibility for his actions. He has expressed a deep sense of remorse in making such a serious mistake and I believe moving forward, he will emerge a better person.
Mr Malibe migrated to Australia from Kenya, where he was born, as a child. He has been raised by his father, having no contact with his mother. He lives with his father just outside the ACT.
He finished school in Canberra, completing Year 12, and then spent time playing rugby league, where he met Mr Bradley, the author of the reference.
He has worked on occasions, although last worked six months ago because he did not enjoy the work and had troubles with transport.
He spoke to the author of the pre-sentence report and attributed his offending to financial hardships the family had experienced since the pandemic.
Mr Malibe is not eligible for Centrelink payments due to his citizenship status, and as Mr Doig, who appears for Mr Malibe, told me today, documents which might support an application to Centrelink were lost in a house fire.
Mr Malibe has been using alcohol and occasionally cannabis. Mr Malibe told the author of the pre-sentence report that there was a relationship between his consumption of alcohol and his commission of the offences which I must sentence him for.
I am satisfied that Mr Malibe is remorseful. He expressed that to the author of the pre-sentence report and Mr Bradley.
Objective seriousness
I am now to sentence him for four offences.
There is an offence of aggravated burglary, the circumstance of aggravation being that it was in company, committed on 1 March 2023. Mr Malibe entered the shopping centre as a trespasser with intent to steal. The maximum penalty for that offence is 20 years' imprisonment.
I am also to sentence him for an identical offence committed on 21 June 2023, as well as an offence of theft by way of joint commission and an offence of damaging property. Both of those offences have maximum penalties of 10 years' imprisonment.
In assessing the objective gravity of the offences, I note that on 21 June 2023, the premises were damaged as they were entered by Mr Malibe and the two others. There was clearly planning; bringing along an angle grinder and an axe is eloquent of that.
It is an aggravating circumstance too, that on 21 June 2023, they broke into premises which they had previously entered. As far as the second offence is concerned, there was more than one other person with Mr Malibe and his co offender.
On the other hand, I note that these were commercial premises. It is notorious that those who find their residential premises have been broken into often suffer a great sense of unease knowing that the sanctity of their home has been invaded. That consideration, of course, does not apply to commercial premises such as these.
I note also that the property was all recovered, there being no suggestion that it was in any way damaged and presumably all those mobile phones were then able to be sold.
Consideration
It is conceded by Mr Doig that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) has been crossed, and thus, a sentence of imprisonment is required. He submits, however, that the sentence of imprisonment should be served either by means of an intensive corrections order (ICO) or be immediately suspended.
Unfortunately, there is no ICO report available, nor could one be obtained any time soon.
It is important that courts move as efficiently as they can in sentencing offenders and that people who do the wrong thing are sentenced as soon as possible.
I have, therefore, decided not to adjourn these proceedings in order to obtain an ICO report, which leaves the options available to me being full time imprisonment or suspension of the sentence of imprisonment.
The prosecutor has very fairly told me that a sentence of imprisonment which was fully suspended would not be an inappropriate one.
In written submissions, the prosecutor submitted that, consistent with the guideline judgment in New South Wales of R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327, it is a circumstance of aggravation of the second offence that it was the second offence committed against the same premises, and so there should be a partial accumulation of sentence.
In my view, that risks double counting. Treating the fact that there were repeated offences involving the same premises as a circumstance of aggravation, as well as partially accumulating sentence, could be seen as double counting of the same circumstance.
What I have decided to do is to impose entirely concurrent sentences but increase the sentence for the aggravated burglary on 21 June 2023 to take into account that it is the second burglary of the same premises.
I note that reparation has been sought. I can understand why it has been sought. The damage caused by the three men on 21 June 2023 cost $8,670.20 to repair. However, given the offender's financial circumstances and his youth, I have decided not to make the reparation order. Instead, I will order that he perform some community service which will go some way to repaying the community for his wrongdoing even if he is not directly repaying the business which had to pay for the repairs to their premises.
I acknowledge that he pleaded guilty in the Magistrates Court to these offences. There is a significant utilitarian value to those pleas and so the sentences I impose upon him will be about 25 per cent less than they otherwise would have been.
Orders
I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date:
DPP
Malibe [2024] ACTSC 43