R v Ligaiviu

[2015] NSWDC 258

District Court

New South Wales

Medium Neutral Citation:	R v Ligaiviu [2015] NSWDC 258
Hearing dates:	17 September 2015
Date of orders:	17 September 2015
Decision date:	17 September 2015
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Referred for assessment as to the offender’s suitability to serve his sentence by way of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW – Sentence – Home invasion – Break and enter with intent to intimidate whilst armed- Offender under the influence of ice - Delusions
Category:	Sentence
Parties:	The Crown Steven Ligaiviu
Representation:	Solicitors: The Director of Public Prosecutions Legal Aid Commission – The offender
File Number(s):	2014/173053

Judgment

1. HIS HONOUR: No one in the community could have failed to recognise that in recent times the drug ice has caused enormous problems, in particular as concerns its involvement in the commission of criminal offences. Very often, offences are committed by those addicted to ice in order to get money to fund their drug addictions. On other occasions people act under the influence of ice in criminal ways in circumstances where there is at least the good possibility that they would not act in that way were they not so intoxicated. The matter before me today is an example of the second of those types of offending.

2. One of the things the consumption of ice can do is to cause the user to experience delusions. On 10 June 2014, the offender believed that the mother of his children, a person with whom he had a relationship but had separated, was in the unit next door to him having sex with the occupants of that unit. This was of course a complete delusion which came about because he had earlier that day consumed about .2 of a gram of methamphetamine.

3. So he went to the unit and, knocked on the door. When the door was opened, he asked “What’s going on, why is there screaming and shouting”.

4. The man who answered the door, one of the people who would become the victim of his offence, told him that he did not know what he was talking about, there was just he and his wife at home. The offender said “Don’t lie, I heard it all, I was standing here the entire time”. The occupant of the unit said “Everything is fine, don’t worry”. The offender walked away and the occupant closed the door.    

5. However, he returned a little while later. Again he knocked on the door and again the door was opened. There was a further conversation in which the offender explained that he knew that his ex-partner was in the unit. The occupant tried to close the door and despite the efforts of the offender, he was eventually able to do so. This was, however, not the end of the matter.

6. The offender went back to the unit from whence he had come, obtained a kitchen knife and for a third time knocked on the unit next door. He yelled out “Open the fucking door, let’s sort this out before it gets big”. Not surprisingly, the occupant said “I’m not opening the door, go back to your unit and calm down”. The offender’s response was to say “If you don’t open the fucking door, I’m going to do more than just smash it. Open the door, open the door” .It was at this stage that the offender forced the door open by shouldering it.

7. The offender is a large and powerful man and so he was successful in smashing the door open. He walked into the unit waving the knife in a slashing motion. The male occupant stood in front of his wife to shield her whilst the offender approached them. He stood very close to the male occupant, only about 30 centimetres away, pointed the knife towards him and demanded to know where his wife was. He then began searching all the rooms calling out to his ex-partner “Kirsty, Kirsty, where are you?”

8. After searching the unit he left and the police were called. He was seen by police and chased along the road. He did drop the knife in a nearby garden but was eventually caught. He went back to the police station, participated in an electronically recorded interview where he made what the statement of facts says are full admissions.

9. To say this was a serious offence is something of an understatement. It was the sort of offence often described as a home invasion. In common with all offences of that type there was a threatened use of violence that went beyond being merely armed. The offender knew that there were people inside and it must have been a terrifying experience for those people whose home was invaded.

10. The offender has pleaded guilty to an offence of aggravated break and enter with intent to intimidate whilst armed. That is a serious matter carrying a maximum penalty of 14 years imprisonment. He pleaded guilty at the earliest opportunity and so he is entitled to a significant discount to reflect the utilitarian value of his plea, not quantified in percentage terms because it has been one of a number of factors which has led to me contemplating a different form of sentence from that I would have otherwise imposed.

11. The offender was born in Fiji and remains a citizen of that country. He came to Australia when he was quite young when his parents migrated here. He had, as he reported to the author of the presentence report, an unremarkable upbringing where he experienced a positive home environment. One qualification to that is that when he was in his late teens his parents separated. The offender was close to his mother and not surprisingly there is at least the possibility that the experience of his mother leaving the family home had adversely impacted on the offender.

12. The offender does have a criminal history including offences of some seriousness. He has spent time in custody in the past. His record certainly disentitles him to leniency on this occasion. Also, there is a history of non compliance with Court orders continuing up to the offender breaching the bail that he was granted for this very offence in relation to his residence at Odyssey House. It was a condition of his bail granted to him after he had spent five months and nine days in custody bail refused that he live at Odyssey House, but despite that he refused to comply with the conditions of residence there and so was asked to leave. Since then he has been living with his father.

13. It is important to note that self-induced intoxication is not a mitigating factor. It does however explain his delusional state on the day he committed the offence. Since the commission of the offence, the offender reports that he has not used drugs and not abused alcohol. Of course, I only have his word for that. Mr Kozanecki led evidence from his client that he was a talented sportsman and suggested that being a sportsman of that standard was inconsistent with drug use. I do have to say, however, that there have been some well-known examples of talented sports people, being discovered to have been drug users.

14. On the other hand there is nothing to suggest, nothing that the Crown can point to, to suggest that the offender has been using drugs and he has made some positive steps towards improving his conduct. He now has a job five days a week. A reference from his employer was tendered today. He is described as being a hard worker, reliable and a person who works well both in a team and on his own. The offender has expressed his remorse. I accept that he is remorseful.

15. In deciding the appropriate sentence to impose upon the offender, I take into account a number of specific factors. Firstly, that he has spent five months and nine days in custody and about two months in a form of quasi custody. I take into account that there have been some changes in the offender’s conduct and there is at least a good possibility that he is telling the truth when he says he has not used drugs of recent times.

16. Of course, the offender must still be punished. I certainly do not think that his custody and quasi custody are sufficient punishment to reflect the objective gravity of what he has done. To the contrary, this is an offence where general deterrence plays a significant role in determining what sentence to impose.

17. It is my job to select the most appropriate sentence in all of the circumstances. I am satisfied that a sentence of custody is required but I am also satisfied that especially given his presentence custody, that is likely to be a sentence of two years or less. An intensive corrections order would both contain an element of punishment and promote the offender’s rehabilitation. It would also test the offender’s honesty when he says that he has given up drugs.

18. In those circumstances, I will adjourn the matter and order an assessment as to the suitability of the offender to serve a sentence of imprisonment which I will impose upon him by means of an intensive corrections order.

19. The matter will be adjourned until 6 November at 10.00 am

20. Now, Mr Ligaiviu, can I just say some things to you? Stand up please. What is going to happen is that in the next seven weeks someone from Corrective Services is going to come and assess you as to whether you are suitable to serve a sentence not in gaol but remain living with your father. Now, I know which one you would prefer to get, okay, but what you have got to do is make sure that you comply with the conditions of the assessment.

21. I can tell you quite clearly, if you are not suitable, Mr Kozanecki will help me explain this to you later. If you are not suitable for an intensive corrections order, there is only one alternative and that is that you will go to gaol. Do you understand that? So you have got to do what you can to make sure you get an assessment which says you are suitable. Do you understand?

22. I am going to make it a further condition of bail, I do apologise, a further condition of bail that Mr Ligaiviu use no illegal drugs whatsoever.

23. So Mr Ligaiviu, if you are detected using drugs, it will be a breach of bail and that will work very much against you in the sentence that I impose upon you. Thank you.

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Decision last updated: 09 November 2015