DPP v Malibe

1. On 26 February 2024 I sentenced Alan Malibe after he pleaded guilty to four offences – two offences of aggravated burglary with intent to steal, one offence of joint commission theft, and one offence of joint commission damaging property. These offences arose out of what Mr Malibe did on 1 March 2023 and 21 June 2023.

2. On the first occasion he and another man went to a shopping centre, pried open some glass doors and went to an electronics store intending to steal from it. They were thwarted by the presence of cleaners and so left, only to return a few weeks later.

3. On the second occasion they were more successful. This time there were three of them. After they entered the shopping centre, they used an angle grinder and other tools to force their way into the same electronics store. They stole 46 mobile telephones, but were arrested soon afterwards and the mobile telephones were recovered by police.

4. These offences were committed when Mr Malibe was only 20 years of age. He was 21 by the time I came to sentence him. I decided that he was “a person who should be assisted by the court to rehabilitate himself rather than focus on punishing him”. I therefore imposed concurrent sentences of imprisonment for an effective period of 18 months, wholly suspending them for two years: see DPP v Malibe [2024] ACTSC 43.

5. Unfortunately for both the community, and for Mr Malibe himself, his compliance with the conditions attached to those suspended sentences was very poor. He made little effort to do the community service he was required to perform, and he failed to engage with ACT corrective services for the purpose of his supervision. Perhaps most importantly, he has also committed another offence.

6. These three breaches demonstrate clearly that Mr Malibe has failed to take advantage of the leniency of my earlier sentences, and has almost completely ignored the opportunities available to him to assist in his rehabilitation.

7. I am today resentencing him for his 2023 offences and also sentencing him for his fresh offence.

8. On the evening of Sunday 9 March 2025, police were called to deal with a fight between two groups of males. By the time they got there the men had dispersed but a search of the area revealed Mr Malibe and two others. Mr Malibe continued to walk away from police despite him being told not to do that on multiple occasions. At one stage he crouched down behind a retaining wall. Police heard the sound of a metal object being dropped and when they searched the location they found a black fully automatic gel blaster which had the appearance of a Glock handgun.

9. Mr Malibe was thus arrested for possessing a prohibited firearm, that being the fresh offence for which I must now sentence him. The maximum penalty for that offence is imprisonment for 10 years. Mr Malibe has pleaded guilty to that offence and so the sentence I impose upon him for that matter will be 25 percent less than it would otherwise have been. He has been remanded in custody since his arrest on 9 March 2025.

10. In DPP v Tuiono [2023] ACTSC 251 at [39], Taylor J helpfully distilled from a number of earlier cases, a number of factors of relevance to the assessment of the objective seriousness of firearms offences. (a) Mr Malibe possessed a single firearm; (b) there is no evidence that it was loaded; (c) being similar in appearance to a Glock 18 handgun, it would have been easy to conceal; (d) it was in the personal possession of Mr Malibe; (e) there is no evidence as to how long he had it in his possession, or how it came into his possession; and (f) this was not a case where Mr Malibe simply had it at home. He was in possession of the firearm late on a Sunday night whilst in the company of other young men who were involved in an altercation with others.

11. I have saved the most relevant of the factors identified by Taylor J to last – the nature and type of the firearm.

12. Of course, not all firearms are equal. The definition of “firearm” includes machine guns and pump action shotguns. A gel blaster which uses compressed air to discharge a projectile is much less likely to kill or cause serious injury than firearms which use an explosive in a cartridge to discharge a solid bullet.

13. But the firearm possessed by Mr Malibe was clearly capable of causing harm, and its appearance could have caused fear and apprehension.

14. It is of concern that, like the earlier offences, this offence was committed when Mr Malibe was out at night with other men acting in an antisocial manner. There are suggestions in the material before me that Mr Malibe has in effect, become mixed up in the wrong crowd, but I have to consider the possibility that it is Mr Malibe who is the “wrong crowd”. There is nothing to suggest that he is leading others to misbehave rather than being led by others.

15. I spoke about Mr Malibe’s background when sentencing him last year. Nothing much appears to have changed apart from one of his older sisters returning to the ACT to provide support to the family whilst he is in custody. He told the author of the most recent pre-sentence report that he had been communicating more honestly with his family since being remanded in custody.

16. Mr Malibe’s sister is in court today, and has offered to have Mr Malibe live with her upon his release from custody. She is clearly a positive influence on his life.

17. Whilst on remand he has been doing a construction course, which will assist him in finding employment upon his release, something he intends to do. A letter from the training organisation was tendered today. It referred to Mr Malibe’s “high level of commitment and engagement with the training” and him making “steady progress toward completion”. This commitment by Mr Malibe is a positive sign.

18. Also tendered today was a letter written by Mr Malibe. In it he expresses remorse and apologises for his offending. He has reflected on his poor decision making and life choices. Consistent with other evidence before me, Mr Malibe refers to his struggle with alcohol dependency which has led to him being where he is today. He intends to complete his rehabilitation in order to reduce his risk of reoffending.

19. This letter is consistent with the contents of a presentence report which is also before me. That report makes clear that Mr Malibe attributed his offending, both in 2023 and more recently, to poor decision making flowing from the consumption of alcohol. He hopes to remain abstinent from alcohol use in the future. He would be assisted if he were to obtain further support relating to his alcohol and drug use upon his release from custody.

20. Section 110 of the Crimes (Sentence Administration) Act 2005 (ACT) provides that where an offender’s good behaviour order was made under s 12(3) of the Crimes Act 1900 (ACT), and a court is satisfied the offender has breached any of the offender’s good behaviour obligations then: (1) The court must cancel the good behaviour order and either— (a) impose the suspended sentence imposed for the offence; or (b) re-sentence the offender for the offence.

21. The prosecution referred me to R v Kelly (No 2) [2021] ACTSC 253 (R v Kelly (No 2)) at [15] where Refshauge AJ helpfully sets out some of the considerations relevant to deciding which of those two options to take.

22. I agree with the prosecution’s observation that non-compliance started less than a month into the bond, and that the fresh offence also shows some similarities with the original offences.

23. It does not appear that Mr Malibe achieved any level of rehabilitation whilst on his good behaviour order, and it is difficult to assess his prospects of further rehabilitation whilst he is in the highly regulated environment of a prison. His desire to improve his behaviour and his way of life may be there, but whether he is capable of doing so remains to be seen.

24. Certainly, there are positive signs; his sister’s move to the ACT, and Mr Malibe’s acknowledgement of the role alcohol has played in his offending amongst them.

25. As Mr Doig, who appeared for Mr Malibe, concedes, given the combination of the breaches of the suspended sentence on the one hand, and the fresh offence on the other, “there would be a high probability that a custodial sentence would be imposed”.

26. Clearly, a sentence providing opportunities and assistance for Mr Malibe to change his ways did not work. And if courts fail to respond appropriately when suspended sentences are breached then public confidence in their use is likely to be diminished: see R v Kelly (No 2) at [13]. There is no good reason not to impose the sentences I suspended last year.

27. I am also of the opinion that the sentences should date from the day Mr Malibe went into custody. His compliance with the conditions of the good behaviour order was so desultory that no other start date is appropriate.

28. Perhaps if Mr Malibe committed his firearm offence without previous convictions and without being subject to good behaviour orders, a sentence of full-time custody would not have been necessary for that matter. But in the circumstances of this case, I am satisfied that no sentence other than that of full-time imprisonment is appropriate.

29. When I originally sentenced Mr Malibe last year I placed particular importance on his youth. He is not much older now than he was then and so his young age remains very relevant. This is also his first time in custody.

30. I did note in the pre-sentence report that Mr Malibe has been subject to disciplinary action on two occasions, and Mr Malibe told the author of the report that he did not consider that he needed further treatment involving the SMART recovery program because he has been abstinent whilst in custody.

31. I agree with the submission made by the prosecutor this morning that in choosing whether to impose a partially suspended sentence, or to impose a sentence of imprisonment with a non-parole period, it is important to take into account the need to encourage Mr Malibe to behave well in custody, and to accept assistance through participation in courses and treatments designed to deal with the problems he has faced which have led him to where he is today.

32. In setting the overall non-parole period, I take into account the need to ensure as much as possible that Mr Malibe does not commit offences in the future. It is thus in the community’s interests that he be supervised for a significant period upon his release from custody. Nevertheless, the non-parole period I will shortly announce is the least which I consider properly reflects the objective criminality of his various offending.

33. Finally, before pronouncing the orders, I wish to make this observation for the benefit of Mr Malibe. In my many years as a judge I have seen many men, usually in their 40’s, who have been offending since they were young and who finally come to the realisation that they have wasted their lives by such repeated offending and repeated sentences of imprisonment. At last, they understand how much they have missed out on, including family life, freedom, and happiness. But by then it is too late.

34. If Mr Malibe continues behaving the way he has been, that is the life he has ahead of him. Only he can make the decision as to what sort of life he wants.

Orders

35. The orders I therefore make are these: (1) The breaches of the good behaviour order made on 26 February 2024 are proved. (2) The good behaviour order made on that date is cancelled. (3) The suspended sentences are imposed. They are to be served concurrently to date from 9 March 2025. (4) For the offence of unauthorised possession of a prohibited firearm (CAN 2025/9165), Mr Malibe is sentenced to imprisonment for 12 months to date from 9 December 2025. This sentence is reduced from 16 months to reflect the plea of guilty. (5) The overall sentence is thus 21 months. (6) I set a non parole period of 10 months.

I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman. Associate: Date: 26 August 2025