Director of Public Prosecutions v Hibbert

[2024] VCC 1646

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-23-01673

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL HIBBERT

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September & 18 October 2024
DATE OF SENTENCE:	18 October 2024
CASE MAY BE CITED AS:	DPP v Hibbert
MEDIUM NEUTRAL CITATION:	[2024] VCC 1646

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Armed Robbery – Theft of a motor vehicle – Offending in company – Relevant criminal history – General and specific deterrence – Reasonable prospects of rehabilitation.

Legislation Cited:      Crimes Act 1958 ss 74, 75A; Sentencing Act 1991 ss 6AAA, 18, 89(4).

Sentence:                  Imprisonment for a period of 2 years and 6 months with a non parole period of 16 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Weinman	Office of Public Prosecutions
For the Accused	Ms H Anderson	Paul Vale Criminal Law

HIS HONOUR:

Introduction

1Michael Hibbert, you have pleaded guilty to the following charges:

(a) one charge of armed robbery contrary to s 75A of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 25 years imprisonment (Charge 1); and

(b) one charge of theft of a motor vehicle contrary to s 74 of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 2).

2You have also admitted your Criminal Record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At the time of the offending you were 46 years old. There are two known co-offenders in this matter, David Lalotoa who at the time of the offending was 32 years old and Puega Utaia, who at the time of the offending was 33 years of age. There are two other unidentified co-offenders who were also involved in the offending.

5The victim in this matter is Kevin Scicluna who resides at an address in Deer Park.

6At approximately 11:15pm on Saturday 29 April 2023, you and a female co-offender attended the victim’s address in Deer Park in a green Subaru Outback and parked in the driveway of the victim’s residence. Your co-accused’s followed the Subaru Outback into the driveway in a red Mazda 3.

7At the time of the offending, the victim had been working in his garage and noticed some headlights in his driveway. You walked through the driveway gates and to the garage in the backyard. You told the victim ‘you better come outside’. The victim asked why and you told him ‘you better come outside because we’re going to take ya cars’.

8The victim followed you down the driveway to the gate at the fence line where he saw another vehicle and your co-offenders Mr Utaia standing on the outside of his driveway gate. The victim also noticed another male, Mr Lalotoa, walking up the driveway towards his gate.

9Mr Lalotoa approached the victim, and the victim noticed he was carrying an object that appeared to be a firearm in his right hand. The object was described as looking like a double barrel sawn off shotgun. Mr Lalotoa pointed the object in the victims face and said ‘you’ve got two seconds to go get me the keys’. At that time, you, your co-offenders Mr Utaia, and your other male co-offender were standing within two metres of Mr Lalotoa.

10The victim asked Mr Lalotoa which keys he was referring to and Mr Lalotoa pointed to a Holden Commodore VN that was parked in the driveway. The victim told Mr Lalotoa that the car does not work. Mr Lalotoa then said to the victim ‘and the keys to the Hilux’. The victim then told Mr Lalotoa that the Hilux did not start as it has a blown motor. Mr Lalotoa then told the victim ‘give me the keys to all the cars’ and started pointing at all of the cars on the victims property.

11Mr Lalotoa waved the object towards the house and told the victim ‘you’ve got two seconds to get me the keys’. The victim went inside the house through the front door and was followed by Mr Lalotoa who was still holding the object. The victim gave Mr Lalotoa three sets of car keys before wheeling the motorbike out of the house.

12Whilst inside the house, Mr Lalotoa told the victim ‘you can wheel the bike out as well’ and pointed to a 390 KTM motorbike that was inside the house. During this time, you, Mr Utaia and your two co-offenders began walking in and out of the victim’s garage.

13The victim noticed your female co-offender walking away from his garage with his 6-channel amplifier, placing it into the green Subaru. He also noticed one of your co-offenders going through his things in his garage whilst holding one of his red torches.

14Once the victim had wheeled the motorbike outside of his house, you got on it and rode it away towards Millbank Drive before doing a U-turn and coming back towards the victim’s house. You then rode away towards Station Road. Mr Utaia got into the victims blue Ford Falcon using one of the keys taken from inside the victim’s home and drove away towards Station Road. The female co-offender drove off in the Subaru Outback towards Station Road.

15The victim was about to go looking for his motorbike as due to it having low fuel, he believed it would not get far. As he was leaving, the victim’s friend arrived at his address. The victim told his friend what had happened, and his friend went looking for the motorbike. The victim’s friend called him shortly after to tell him he had found the motorbike near Brimbank Shopping Centre. The victim told him to keep it at his house in case the offenders returned to his house to steal it again.

16The victim was too scared to call the police straight away however on 3 May 2023, he called 000 and reported what had occurred. Detective Senior Constable Timothy Farrant and other police members then attended the victim’s home the same day. Crime Scene Services Officers also attended the scene and took photographs of various locations and collected DNA swabs from a LED torch located in the garage.

17CCTV footage was obtained from the victims address which showed the incident, including the vehicles in which the offenders arrived in. Mr Lalotoa was observed in the CCTV footage to be carrying a brown handled sawn-off double barrel shotgun. You and Mr Utaia were also observed in the footage.

18On 5 May 2023 the victims blue Ford Falcon was located parked outside 8 Ball Street, Sunshine North. The vehicle was towed by police for forensic examination. On the same day, at approximately midnight, police observed the green Subaru Outback in Kealba. The vehicle was intercepted near the intersection of Driscolls Road and Calverton Road in Kealba before being towed by police for forensic examination.

19On 11 May 2023, Crime Scene Officers forensically analysed both vehicles.

20On the 12 May 2023, a latent fingerprint located on the top of the driver’s door of the blue Ford Falcon returned a match to Mr Utaia who is seen on the CCTV footage from the victims address placing his hand in this position.

21On 18 May 2023 at approximately 12:30pm, Mr Lalotoa was located and arrested at Watergardens Shopping Centre. A black satchel bag was removed from Mr Lalotoa and seized. Inside the satchel bag were the following items:

(a)   keys to a Ford Territory with a key tag displaying YXY568 alongside a second Ford key and remote; and

(b)   a Ford key with an attached remote.

22Police located a grey Ford Territory in the Watergardens carpark just north of where Mr Lalotoa was arrested. Investigators searched the Ford Territory and located the following items:

(a)   a Volkswagen key;

(b)   a NAB bank card;

(c)   an Audi key; and

(d)   an Optus mobile phone.

23At approximately the same time, police executed a search warrant at Mr Lalotoa’s residence in William Street in St Albans. The following items were located:

(a)   a Ford car key and remote believed to be from the victims vehicle; and

(b)   a zip lock bag containing a white crystal substance.

24On 24 June 2023, Mr Utaia was arrested on Stradbroke Drive in St Albans.

25You were arrested on 23 May 2023 in Mansfield Avenue, Sunshine North and interviewed at the Sunshine Police Station where you largely made a no-comment interview. You denied having any knowledge of the alleged offending.

26On 7 June 2023, police attended the victim’s address with the Ford keys located on Mr Lalotoa and the Ford keys seized from William Street, St Albans. The victim tested the keys on his Ford Falcon and confirmed the keys belonged to the vehicle by locking and unlocking the vehicle.

27The victim was also shown a photograph of the three amplifiers located in the boot of the green Subaru Outback in which he identified all three amplifiers as having been stolen from his garage during this incident. Two of the amplifiers were returned to the victim on 8 June 2023.

Nature and gravity of offending

28Armed robbery is viewed by Parliament as a very serious offence which is reflected in the maximum penalty of 25 years imprisonment. In this instance the offence is particularised as having been committed in company elevating the seriousness of the offending, making it a Category 2 offence.

29The offending involved you together with three identified offenders and two unidentified offenders. You and your co-offenders arrived at the victim’s residence late at night in two separate vehicles. The prosecution case is put on the basis that you assisted and/or encouraged Mr Lalotoa to commit the offence of armed robbery as he was the offender who produced the imitation firearm, and you continued to assist him from that point on to the completion of the armed robbery of the keys. The prosecution however concede that the evidence does not disclose that you had knowledge of the firearm before it was produced by your co-offender.

30Having viewed the CCTV footage of the initial moments of the armed robbery, it is you that first enters the property and confronts the victim demanding that he come outside telling him that you and your co offenders were going to take his cars. The CCTV footage then depicts Mr Lalotoa approach the victim and point the weapon in his face while demanding the keys to vehicle. You are standing nearby Mr Lalotoa as this occurs.

31The CCTV depicting the weapon being pointed at the victim’s face is obviously confronting and would undoubtedly have been a terrifying experience for the victim. The offending clearly involved a degree of planning, it was committed late at night, it was committed in company, and it involved the use of an imitation firearm. In all the circumstances in my view this is a relatively serious example of armed robbery in company.

Personal circumstances

32You are now 47 years old. You were born in Carlton and raised in the Footscray and Werribee areas. You are the eldest of four boys. Two of your brothers are boilermakers and one is a carpenter. Your parents separated when you were 25 years of age. Your mother was a stay-at-home mum, and your father worked in engineering management. You maintain a good relationship with both of your parents and speak to them regularly. You mother has attended all of your court hearings and confirmed her ongoing support, providing evidence at your bail hearing.

33You had a good childhood, one in which you enjoyed playing sports. You completed school up to year 11 before completing a carpentry apprenticeship. You worked as a carpenter until 2021.

34You have previously been diagnosed with anxiety, depression and bipolar disorder in which you were prescribed various different medications. In 2009 you were prescribed Xanax for your anxiety which you took for six months before being cut off by your doctor with the prescription ceasing immediately. This led to you hearing voices and becoming delusional. You had a suicide attempt and spent approximately two weeks in a psychiatric hospital. You are not currently medicated in relation to your mental health.

35You have had several significant relationships. You met your most recent partner in 2010 and you were together for over 10 years. You were also engaged. Your relationship was positive until last year when it started to break down and become abusive. You became a victim of family violence that was primarily psychological and emotional but also physical at times. On one occasion your partner tried to stab you. You were protected by an intervention order.

36Your former partner developed issues with drugs and her mental health which you tried to assist her with. You tried to save the relationship, but you were unable to. You struggled with the relationship breakdown and became depressed.

37Following this relationship ending you became homeless and self-destructive. You began using methylamphetamine and heroin having not previously used these drugs. You spent just under three weeks in custody in 2022 before being released onto a Community Correction Order. You moved to Morwell for a fresh start and become employed in housing renovations, however, this work ended and your cycle of homelessness and drug use recommenced. This offending occurred whilst you were in this cycle.

38While in custody for this and other offending, you have stayed clean from drugs and engaged in various courses. You are currently working as a billet and you are the head billet for your custody unit. You have used your time in custody to clear your mind and continue to rehabilitate, including coming to terms with the nature of your drug addiction and dealing with your mental health issues. You are currently on the waitlist for other courses in custody including vocational courses. A number of certificates were tendered confirming your completion of courses you have undertaken.  

39You have the ongoing support of your mother who has expressed her willingness to provide you with a stable and supportive environment when you are released. You were not in contact with your mother during your cycle of homelessness and drug addiction as she does not tolerate drug use. You are now in regular phone contact with your mother and other family members however, due to the distance from Werribee to Fulham where you are housed, physical visits are limited.

40Upon release you intend to recommence working in construction and focus on your rehabilitation. You ultimately want to have your own place and start a family. You are committed to staying on track with your rehabilitation to achieve these goals.

Sentencing considerations

41Ms Anderson who appeared on your behalf highlighted a number of matters to be taken in to account in mitigation.

42I first take into account your plea of guilty which was entered following a sentence indication hearing before me. Your plea demonstrates your acceptance of responsibility in the offending which has brought the matter to an early conclusion, thereby saving court time and expense. I note also that in relation to the theft of the motor cycle, you offered to plead guilty to this charge at the Magistrates Court.

43Turning to your prospects of rehabilitation, it is self-evident from the materials that in recent years you have battled with addictions to methylamphetamine and heroin which has undoubtedly informed your criminal conduct. You have a relevant prior criminal history and around the time of this offending, you were sentenced for other matters including offending that occurred on the morning of this offending that involved a firearm and assault. Nonetheless, it seems that during your time in custody you have remained drug free and have engaged in courses to assist you in maintained a drug free lifestyle. Further, you have the ongoing support of your mother who will offer you accommodation upon your release. In my view if you maintain the positive attitude that you have adopted in custody, your prospects can be assessed as reasonable.

44Turning to other sentencing considerations.

45Deterrence, both general and specific are prominent sentencing considerations. Your offending, committed in company on private premises at night is serious conduct, that must be deterred. Those contemplating such conduct need to be made aware that the courts will deal with such conduct sternly.

46You have available to you 323 days of pre-sentence detention to be declared however it was submitted on your behalf that you have been in custody continuously for some 16 months as a result of other sentences imposed in September 2023 and March 2024. As such it was submitted that the principle of totality has application. I accept that submission and have taken the total time you have spent in custody into account.

Sentence

47Mr Hibbert, would you please stand.

48Michael Hibbert, on Charge 1, armed robbery, you are convicted and sentenced to 2 years and 6 months imprisonment. On Charge 2, theft you are convicted and sentenced to 6 months imprisonment. The sentence on Charge 2 is wholly concurrent with the sentence on Charge 1.

49I direct that you serve 16 months before becoming eligible for parole.

50Pursuant to s 18 of the Sentencing Act1991 (Sentencing Act), I declare that 323 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

51Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 4 years with a non-parole period of 3 years.

52In relation to Charge 2, pursuant to s 89(4) of the Sentencing Act any licence you hold is cancelled and you will be disqualified from applying for a further license for a period of 3 months.