R v Naqelevuki

[2021] NSWDC 748

District Court

New South Wales

Medium Neutral Citation:

R v Naqelevuki [2021] NSWDC 748

Hearing dates:

19 November 2021

Date of orders:

19 November 2021

Decision date:

19 November 2021

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Aggregate sentence of 5 years 6 months with a non-parole period of 3 years 6 months.

Catchwords:

CRIME - Aggravated robbery and deprive person of liberty - Robbery armed with offensive weapon

SENTENCING- Relevant factors on sentence – guilty plea- impact on victims- impact on community - background of trauma – on ICO- Alcohol Use Disorder- youth and immaturity - Oppositional Defiance Disorder- moral culpability- guarded prospects- aggregate sentence- special circumstances

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Attorney General’s Application No. 1: (2002) 56 NSWLR 146

Clarke-Jeffries v R [2019] NSWCCA 56

DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

Markarian v The Queen (2005) 228 CLR 357

Moodie v R [2020] NSWCCA 160

R vEngert (1995) 84 A Crim R 67

R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149

R v Henry (1999) 46 NSWLR 346

Texts Cited:

Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497. parolesupervisionandreoffending.pdf

Category:

Sentence

Parties:

Iokimi Naqelevuki (the offender)
Director of Public Prosecutions

Representation:

Solicitors:
Mr M Kwan, Legal Aid NSW (for the offender)
Ms A Cabrera (for Director of Public Prosecutions)

File Number(s):

2021/00015255; 2021/00075538

sentence – ex tempore revised

Introduction

1. This morning Iokimi Naqelevuki adhered to guilty pleas that he entered in the Local Court to two serious offences; armed robbery and aggravated robbery: s 97(1) Crimes Act 1900 and s 95(1) Crimes Act. The circumstance of aggravation was deprivation of a person of their liberty. He asked that when I sentence him for the s 95(1) offence I take into account two matters on a Crimes (Sentencing Procedure) Act 1999 Form 1 of obtain benefit by deception, proceeds, effectively, of that earlier robbery. It is appropriate I do so.

2. As the pleas were entered in the Local Court I must reduce each sentence by 25% to reflect the utilitarian value of the pleas of guilty. Because I will be imposing an aggregate sentence and the sentences will be accumulated partly one on the other I have to take care that the benefit of that guilty plea not be eroded by the process of accumulation.

3. Both offences carry maximum penalties of 20 years’ imprisonment. They, together with the guideline judgment, are important guides to the exercise of my sentencing discretion.

Agreed Facts

4. In the Local Court Mr Naqelevuki accepted the facts which are now before the Court. In brief summary, in July 2020 he and others were drinking together. They discussed going to the service station at Balgownie and robbing it. The three intended to share the proceeds but it was this offender who was the main actor. He was driven there, by one of the others, in a car and he put on gloves, tied a big scarf around his face, put on a coat, baseball cap and he took with him a claw hammer.

5. He entered the service station at about 7.25pm. The attendant was stocking the fridge and had her back to the entrance. She saw Naqelevuki going towards the counter and she sought to intercept him. At this point she did not quite understand what he was going to do but it soon became obvious. It is clear, having watched the CCTV, Exhibit B that she must have seen this relatively large and disguised man was armed with a claw hammer. She immediately left the store and took shelter with a customer. As she exited the store she was able to stop a young girl from entering. They then took shelter at a car near the bowsers. The offender smashed his hammer into the keyboard register but, as it failed to open, he helped himself to packets of cigarettes and then ran from the store.

6. The distress of the attendant and those at the scene, particularly the child, is evident in the CCTV. To his credit, having watched that CCTV in court, the offender accepted in his evidence today that it did not “look nice” and that as he has a young sister he could readily understand how the child would have been traumatised by watching what occurred.

7. The second offence occurred some months later, on 17 January 2021. The victim in this matter is a community-minded man who collects litter when he goes for late walks on the beach. He was doing this near the Towradgi Surf Club during the early morning of the 17th when a car stopped. The offender was in a car alone. It is clear from having watched the CCTV, Exhibit B, that he is not just younger but bigger, fitter and stronger than the victim, who was 67 years old.

8. Naqelevuki had a beer bottle in his hand. He yelled “Have you seen my sisters?” The victim was not willing to engage with him because he ran away in fear. But he was chased, caught and punched. He tried to defend himself but was punched to his thigh. He was told, “This is a robbery, bro, I need $300.” The victim said, “I don’t have any money” and pulled out his pockets. He lost his glasses, hat and a shoe fell off. The offender was quite agitated and overbearing. The offender said, “Let’s go, where do you live? Let’s go to where your life is” He kept saying things like, “Your life is more valuable than money, I’ll kill ya, bro”.

9. The victim was grabbed and prodded. He was unable to find his shoe or his glasses. At one point he had to be carried by the offender who took him to his unit. He offered a gold chain and some money but only had $22 in change. He then offered his Visa card and PIN. The offender replied that he might be lying about his PIN and compelled him, under fear of further assault, to go to a nearby 7-Eleven. What occurred there is captured on CCTV: Exhibit B. There they waited. It is clear from the CCTV that the victim’s will was overborne by the offender.

10. The two had to wait for some minutes; other people came up, and were also waiting. Despite the victim trying to explain to them what had occurred and complaining later to the attendant, they did nothing to help him. The offender used the Visa card to purchase cigarettes. It was only then that another customer, a woman, offered assistance and called Triple-0.

11. The offender then left in a car which was a different car than he appears to have been in earlier. It may be that unwittingly, as it is obvious from the video the people in the car who knew him and offered him a lift. Shortly afterwards a Visa card was used to purchase $100 worth of goods.

12. The victim suffered bruising and abrasions, swelling to his temple and face. Later, police were able to obtain some of his property from the beach area.

Objective seriousness

13. Each of the crimes for sentence were not just crimes against property; they are crimes against people. When citizens are robbed, assaulted, threatened it can have a terrible impact on them. Where they occur near places we all like to frequent, service stations, beaches, they can have more serious consequences for the community. People lose confidence in others, they feel that public areas are not safe. They learn to believe that the police and then the courts cannot protect them. Where people learn and begin to fear others they lose trust in others, and where people are fearful of fellow members of the community the entire community suffers. People fear going out and engaging in community activities.

14. Where criminals are caught committing offences such as the two before the Court the community can lose trust in the Courts if the Courts do not exact appropriate retribution and punish them severely. The need for consistency in sentencing and a fear that there was excessive leniency by sentencing judges led the highest court in New South Wales to publish a guideline judgment designed to assist judges in their sentencing discretion: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, 106 A Crim R 149. While not prescriptive applicable judgments have to be taken into account; they are guidelines not tramlines: s.42A Crimes (Sentencing Procedure) Act 1999: Moodie v R [2020] NSWCCA 160.

Count 1

15. So far as count 1 is concerned it is obvious there was some premeditation but any planning was limited. Naqelevuki used his own vehicle and only a rudimentary disguise.

16. The victim was providing a valuable community service. There was limited violence towards her from the presence of the hammer and the size of the young offender. The weapon used was makeshift but it is still a dangerous and frightening thing to be confronted with.

17. Naqelevuki made very little profit and he did allow the victim to escape, but as is obvious from the CCTV he caused considerable distress to the attendant, who was alone and isolated, and to the customers who arrived, particularly the child who was exposed to what occurred.

Count 2

18. Count 2 appears to have been spontaneous. He confronted a vulnerable, older man, who was isolated and clearly less physically able than he was. There was actual violence and a pervading threat of violence, involving psychological coercion. The victim’s will was clearly overborne by fear that he might be more seriously hurt or even killed. He was detained for a relatively short period, but it must have felt like an eternity.

19. Although not a lot of cash was taken, the detention, the deprivation of liberty, would have left him psychologically scarred. The failure of others, until one good Samaritan intervened, must have enhanced that vulnerability and led to a lack of trust in others.

20. I do not have Victim Impact Statements but their absence does not give rise to an inference that the offence had little or no impact on the victims: s 30E Crimes (Sentencing Procedure) Act.

Form 1 matters

21. There are other matters on the Form 1 and I have to take them into account. They do operate to increase the sentence: Markarian v The Queen (2005) 228 CLR 357. There is another guideline judgment that I take into account. I do not sentence for those matters but they add to the sentence for the current matter so far as personal deterrence and retribution is concerned: Attorney General’s Application No. 1: (2002) 56 NSWLR 146 at [39] – [42]. I must take care in such matters to not double count because here the matters on the Form 1 also inform my assessment of the objective seriousness of the offences for sentence as, effectively, they relate to the proceeds of that offence, being what was purchased with the stolen Visa card.

Criminal history

22. The offender has a criminal history. He has been in custody since his arrest in January 2021. In April 2019 a judge of this Court Imposed upon him a three-year sentence to be served by intensive correction in the community. When that sentence was imposed he must have given the judge, his family and, I suggest, himself a promise that he would be of good behaviour and not commit further crimes. His failure to keep those promises means a greater sentence has to be imposed upon him. It also means that when I come to structure the sentence I will allow for a period to be spent in custody solely relevant to that offence.

23. He also committed offences in December of 2020 that brought him before the Local Court. A relatively lenient sentence was imposed upon him, but there must be some independent sentence for those matters. His record denies him the leniency often given to first offenders.

COVID

24. He has also spent his time in custody subject to the restrictions designed to try and quarantine prisoners from the impact of the COVID pandemic. COVID has entered our gaols but to date, as far as I am aware, no prisoner has ever got the early parole that might be available should they be affected by it. Frankly, Mr Naqelevuki indicated that he had suffered no significant adverse effects, but it is clear that all prisoners have suffered some restraints due to lockdowns and lack of access to programs. He has, however, been able to have some internal work programs provided to him, but no rehabilitation programs have been provided. Whether that is simply because he is a remand prisoner or because of COVID restrictions I do not know.

25. He has endured 11 months of such restrictions, he may face them again. We all feel some anxiety concerned with the pandemic and prisoners have no control over their lives. Those factors must be synthesised. He frankly admitted that the video link facilities have allowed him contact with his prosocial family members, who are listening in to these proceedings, and he looks forward to actual visits with them when the restrictions are lifted.

Subjective case

26. Naqelevuki’s subjective case was set out in his evidence to me and in a detailed report from a forensic psychologist, Ms Brann: Exhibit 1. He was born in 2000 in Fiji and came to Australia when he was about six. His parents separated when he was still young. His stepfather has provided for him but they did not engage. He has memories of an abusive incident when he was in Fiji and aged three; a matter not disclosed until he was an adult, that may have had some impact on him.

27. As a child he was subject to physical discipline. When he came to Australia his mum had to work to provide for him and his siblings. He seems to have exhibited some significant behaviour problems while still young. He played rugby and he was able to get work, but it would appear that alcohol, drugs, negative associations took over his life. People talk about hanging out with the criminal element, which he did; but he also was part of that criminal element.

28. Ms Brann talks about his lack of parental supervision, but parents can only do so much. I am sure his mother and stepfather and other family members tried to keep him in line, but he thought he knew better. He did not know better, his family did. As he realises now he is in gaol and where he will spend a significant proportion of his young life. Despite everything his family still care for him. They are still available to him and will do what they can to support him.

29. I do take into account his early uptake of illicit drugs before he really had a chance to make rational choices; R v Henry (1999) 46 NSWLR 346. There are some aspects of his background that impact on his moral culpability.

30. He has shown in his evidence some insight. Ms Brann in her comprehensive report notes that his experience as a child may have contributed to his externalising, rebellious behaviour. She notes that while he has some capacity, there are two aspects of his life that need addressing. She is however frank; she was not particularly confident that they could be addressed.

31. The first was his substance use history, with some associated gambling problems, which she says meets the criteria for Alcohol Use Disorder - severe. The second, is that he endorses a number of symptoms consistent with an Oppositional Defiance Disorder that has gone undiagnosed. That, she says, is reflected in his history of; impulsivity, substance abuse, gambling history and problems both at work and in relationships. He has difficulty adjusting to formal interviews and dealing with others. His response to authority is often to turn away and be defiant.

32. Given the persistence of these issues they have become entrenched in his thinking. He now demonstrates antisocial personality traits. While those matters may have their genesis in his childhood and his later alcohol abuse problems they remain present today. He will benefit from psychological intervention. He will need considerable help in adjusting to normal community life on release. While he has his family are there for him Ms Brann suggests that environmental controls that restrict his association with known co-offenders will be of assistance.

Submissions

33. Ms Cabrera, Solicitor, for the Director of Public Prosecutions, noted that, despite what fell from Naqelevuki today in evidence, a close analysis of what he did, his failures to comply with the conditions of his intensive corrections and the report of Ms Brann, means that little has changed; he still has limited insight into his offending and what needs to be done about it.

34. Mr Kwan, solicitor, who appears for the offender, drew my attention to the principles succinctly summarised in DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]. In particular he noted the offender’s lack of capacity to reason about the consequences of his actions which, he said, made him an inappropriate vehicle for general deterrence.

35. Mr Kwan said that the community can be best protected, not by removing Mr Naqelevuki from the community but by providing him with supervision and assistance in the community. He also drew my attention to authorities which indicate that young men, particularly young men who have a background such as this offender, often have a level of maturity that does not necessarily reflect their actual age.

36. Mr Kwan submitted that a significant finding of special circumstances could be made to enable structured release into the community.

37. It is important to note that Bureau of Crime Statistics studies reveal that offenders who do receive parole supervision are less likely to commit new offences and committed fewer offences than those who were unsupervised. It is clear that the ICO being served during the pandemic meant that the sort of supervision Naqelevuki requires was not provided. See Parole Supervision and Re-offending: Wai-Yin Wan, Suzanne Poynton, Gerard van Doorn and Don Weatherburn (2016) Australian & New Zealand Journal of Criminology v149. No.4. p 497.

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Synthesising all of those matters.

I take into account his background. Naqelevuki’s underlying psychological problems must be taken into account but it also gives rise a need for specific deterrence. And, as is also outlined in DPP v De La Rosa and R vEngert (1995) 84 A Crim R 67, sometimes there are personality disorders that require a court to give particular consideration to the protection of the community.

There is material before the Court that indicates that that background has impacted on his moral culpability. The Court has to recognise that immaturity, social disadvantage and trauma, including as the victim of a crime when a child, can precede the commission of such offences. These matters must be taken into account. They can explain recourse to violence. They also help me understand why as a young man, until he went into custody for the first time, he resorted to binge drinking.

The law recognises that the potential for the cognitive, emotional and psychological immaturity of young people to contribute to the breach of the law, and that emotional maturity and impulse control can develop as they get older and may not develop until their mid-twenties: Clarke-Jeffries v R [2019] NSWCCA 56.

The evidence today indicates some growing maturity and the Court, as Mr Kwan submits, has to recognise that young people do have the capacity to learn and conform to society’s norms if given an opportunity. Allowance can be made when considerations of general deterrence and retribution are considered making those principles of less significance than they would for a mature adult who commits the same offence.

There are two distinct offences before the Court: They had different consequences. I have to fix an appropriate sentence for each offence and structure the sentence so the overall sentence is just an appropriate to the offender’s crimes. I do not simply add one on the other, but there should never be any suggestion there is a discount for multiple offences. There should be some downward adjustment here to achieve an appropriate relativity between the total criminality and the totality of the sentence

38. He was arrested on 18 January 2021, the Intensive Correction Order continues until 18 April 2022. There was a sentence in the Local Court. To allow for some independent punishment for the breach and the Local Court sentence I propose to start the sentences for on 18 July 2021.

39. Naqelevuki is still young. His background disposed him to matters to which I have referred but there remains a considerable concern that his antisocial personality traits have not yet been addressed. That concern is reinforced by the fact that he will have to spend more time in custody. If he continues opposing authority figures and mixes, as he will, with those who defy authority, the real prospect is that he might spend much longer in gaol. His evidence today indicates that he realises that fact. He does not want to spend the rest of his life in gaol. He has goals. He wants an apprenticeship. He wants to re-engage in sport and he promises that he will stay with his family and stay away from old associates.

40. I am not sure how long those promises will hold while he serves serve the minimum time that his crimes deserve. I will make a finding of special circumstances to increase the time he is supervised in the community because of his background and because of the accumulation of sentences. But I cannot reduce that period below what must be required to reflect the gravity of his two significant sentences and the other purposes of sentencing.

41. I am not particularly confident he will take up the challenges and opportunities parole will give him. His ultimate rehabilitation will depend on his response to custody and whatever services and assistance he might be given during and after release. The assessment of the likelihood of his reoffending is appropriately left, however, to the State Parole Authority. Release to parole has to be earned and release to parole will be only allowed if the State Parole Authority form a view that it is in the interests of the community, the safety of the community.

42. What that means, Mr Naqelevuki, is that after you serve the minimum term the law requires you will have to prove yourself to the State Parole Authority before you get released.

Orders

49. The formal orders of the Court are these, you are convicted. I take into account your early plea of guilty and all the matters to which I have referred. The sentence will reflect the finding of special circumstances.

Indicated sentences

50. In relation to the s 97 matter, aggravated robbery and deprives person of liberty – Taking into account the matters on the Form 1, I indicate a sentence of 3 years 4 months.

51. I In relation to the s 95 matter, robbery armed with offensive weapon - I indicate a sentence of 4 years.

Aggregate sentence

52. There will be an aggregate sentence of five years and six months which will commence on 18 July 2021, which is six months after you went into custody. The non-parole period of that sentence is three years and six months, it will commence on 18 July 2021 and expire on 17 January 2025 on which date you will be eligible for consideration for release to parole. There will be a two-year parole period and the total sentence will expire on 17 January 2027.

53. Ms Brann’s report will go with the warrant to the gaol for the assistance of the State Parole Authority.

54. The effect of my sentence is that taking into account the breach, the Local Court matters, the two matters for sentence there is a total sentence of six years’ imprisonment with a minimum term in custody of four years.

55. Thank you, Mr Kwan, thank you, Ms Cabrera.

56. AUDIO VISUAL LINK CONCLUDED AT 12.15PM

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Decision last updated: 08 March 2022