R v Ngata

[2023] NSWDC 434

District Court

New South Wales

Medium Neutral Citation:

R v Ngata [2023] NSWDC 434

Hearing dates:

13 October 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Nimilote Ngata is convicted.

2   Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 4 years with a non-parole period of 18 months to date from 13 October 2022. The non-parole period will expire on 12 April 2024 and the head sentence will expire on 12 October 2026.

3   The offender will be eligible to apply for parole on 12 April 2024.

Catchwords:

CRIME — Violent offences — Robbery in company

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Legge v The Queen [2007] NSWCCA 244

R v Henry (1999) 46 NSWLR 346

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Nimilote Ngata (Offender)

Representation:

Counsel:
I Todd (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Zahr Partners (Offender)

File Number(s):

2022/241842

Publication restriction:

None

JUDGMENT

Introduction

1. Nimilote Ngata (the offender) appears for sentence after pleading guilty in the Local Court to an offence of robbery in company contrary to s 97(1), Crimes Act 1900. The maximum penalty for the offence is 20 years imprisonment.

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

4. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

5. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

6. The victim is 62 years old and lives alone in Drummoyne. He is a user of prohibited drugs.

7. The victim and the co-offender, Andrew Sharp, were known to each other because the victim had previously purchased drugs from him on two prior occasions. The victim knew the co-offender as “Blacky”. He stopped purchasing drugs from the co-offender because he was unreliable.

8. In around mid-June 2022, the victim received a phone call from an unknown number. The male on the phone introduced himself as “Blacky” and the victim recognised the co-offender. The co-offender told the victim that he had been released from gaol and if he needed any drugs, he could provide them.

9. On 22 June 2022, the victim withdrew $1000 from an ATM in Drummoyne at about 4.30pm. At about 6.30pm, the victim sent a text message to the co-offender’s phone asking to buy drugs. The co-offender called the victim straight away. The victim made an order for $1,000 of methamphetamine and $450 of GHB. The co-offender agreed to the sale and the victim provided his home address for the drugs to be delivered.

10. A short time later, the co-offender called the victim again to check that he had cash on him. He called the victim twice more, to confirm the victim’s address and to let the victim know he was running late.

11. Later that night, the offender and co-offender arrived at the victim’s house. The victim answered the door. The co-offender introduced the offender as his cousin and asked if he could also come in. The victim allowed both men into the house. They all walked into the loungeroom and sat down. The offender commented on how nice the victim’s house was. The victim noticed that the offender was carrying a 600mL drink bottle and the co-offender was holding an “Up and Go” drink bottle.

12. The co-offender asked the offender to get a set of scales, a bottle and a plunger to distribute the GHB. When the victim returned, the co-offender told the victim to sit down. The co-offender told the victim that if he cooperated with them, he would be okay, but if he did not cooperate he would “suffer the consequences” and he would “take out [his] knees”. He also told the victim that they knew where he lived and he “will suffer” and threatened that if he went to the police, he would hunt him down.

13. The victim felt immediately scared and fearful for his safety. He believed that the threats were serious.

14. The co-offender demanded that the victim get his car keys. The victim went to his bedroom and was followed by the two offenders. The victim retrieved the keys from his bedroom and handed them to the co-offender. The co-offender then asked the victim if he had anything else of value. The victim said he had a stereo and a laptop, but the co-offender was not interested in those items. All three men walked back into the loungeroom.

15. The co-offender asked the victim for cash. The victim pulled $1500 in cash from his pocket and handed it to the co-offender, who in turn handed the cash over to the offender.

16. The co-offender then asked the victim how much money he had in his bank account. The victim told him he had $50. The co-offender told him that they needed $3000. The victim said that he could arrange get that money if he transferred money between accounts. The co-offender said, “You are lying to us. I told you what would happen if you did not cooperate, you told me you only had $50. Is it going to be your left or right knee?”.

17. The co-offender told the victim that they would go to an ATM to get the money. The victim collected his wallet from his bedroom and walked out of his home with both offenders following him. They walked to the victim’s vehicle that was parked outside.

18. The co-offender instructed the victim to get into his vehicle and the co-offender drove the victim to an ATM for the purpose of withdrawing cash. The Crown does not allege any wrongdoing against the offender for this period.

19. At about 8.45pm, the co-offender and the victim arrived back at the victim’s residence, where the offender had waited for them. The co-offender parked the victim’s vehicle several houses away. The co-offender told the victim to walk back to his house. The offender and co-offender followed him inside. The victim handed the $1,500 in cash that he had withdrawn from the ATM to the co-offender, who handed it to the offender. The offender began counting the money.

20. The offender then took the victim’s mobile phone from him and processed a $2 transaction to his own bank account. The offender called the co-offender and told him that the transaction had gone through. The offender then made a $2,000 bank transfer from the victim’s account to his own, and then a $5,000 transfer from the victim’s account to his own. The total amount of money that the offender transferred from the victim to his own account was $7,002.

21. The co-offender warned the victim not to go to police and told the victim that although there were only two of them, he had other friends who would cause him harm and he knew his address and they would “track [him] down”. The co-offender then said, “I don’t normally do this, we got debts to pay, you will get your money back don’t worry”.

22. The co-offender told the victim to turn off “Location Services” on his phone and to provide him with the passcode.

23. The co-offender asked about CCTV cameras attached to the victim’s house and instructed the victim to take him to the Digital Video Recorder where the footage was stored. He asked the victim whether it was connected to the Cloud, to which the victim replied that it was not. The co-offender told him that they had a friend who was an “expert” and could check whether it was connected to the Cloud. He then told the victim to pull out the cords of the Digital Video Recorder and give him the hard drive.

24. Both offenders left the house and the victim closed the door behind them. He was in complete shock and frightened for his life. Later that day, the victim went to look for his car, but it was gone.

25. On 24 June 2022, the victim attended Ashfield Police Station to report the matter. He was apprehensive and worried about the ramifications for reporting the matter. He granted police permission to establish a crime scene at his home.

26. An examination of the victim’s home was conducted by crime scene investigators. Police located two bottles and subjected them to forensic analysis. One was found to have the offender’s fingerprints and the other the co-offender’s.

27. The co-offender was arrested following a police pursuit on 1 July 2022. He was driving the victim’s car.

28. The offender was arrested on 16 August 2022. He declined to participate in an interview.

The Offender’s Case on Sentence

29. The offender tendered the following documents:

1. psychological report of John Machlin dated 18 September 2023;

2. Case Note Report, Department of Corrective Services dated 14 September 2023;

3. summary of programs/services participated in by the offender dated 14 September 2023;

4. summary of programs/services Status Report;

5. summary of offender Work Assignments Report;

6. offender’s Justice Services Psychology Participant file;

7. email correspondence with Department of Communities and Justice from 20 September 2023 to 10 October 2023; and

8. letter of apology from the offender dated 10 October 2023.    

30. The following is a precis of the evidence relied on by the offender. The offender was supported in Court by his partner.

31. The offender was born in Sydney. He was the second of four children to his Tongan-born parents. His elder sister died at age six.

32. The offender told the psychologist that he was raised in an atmosphere of tension and violence. His father consumed alcohol to excess after the death of the offender’s sister and was often physically abusive toward the offender and his mother. His father served a number of prison terms. His mother was a disability care worker. He has a close relationship with his mother. He got on well with his younger siblings but did not see them often during childhood as they lived with their grandparents. He reported that his parents were overprotective of him following the death of his older sister. He left home at age 18. He now has a positive relationship with both parents and his father has recognised that he was too hard on him.

33. There are some inconsistent histories in the Justice Health records that indicated that he had a positive upbringing with no issues of concern.

34. The offender attended four primary schools due to persistent misconduct. He reported his academic performance was satisfactory. His behavioural issues continued in high school. He was a talented footballer and gained entry in Year 10 to Endeavour Sports High School. He adapted well to the sporting culture and his behaviour improved. He completed the Higher School Certificate.

35. He reported being sexually abused at church when he was 11 or 12 years old. This matter is currently the subject of a civil claim. Documentation was produced to support that the offender has engaged solicitors to pursue this claim.

36. He reported sustaining a serious head injury at around age 15 during a football match. He was concussed, hospitalised and off school for three or four weeks. He was unable to play football for nine months. He recalled a period of rehabilitation to assist with problems affecting his speech and gait.

37. After leaving high school, he was contracted to the Sydney Roosters Juniors, but did not advance because of his drug use. He was also incarcerated for periods during this time.

38. He has been employed in the community for sporadic, cash-in-hand demolition work for people he knows. He has a full-time job ready for him upon his release from custody in demolition with a family friend. He has also expressed an interest in commencing a university-level education whilst in custody and working as a counsellor. He works in the furniture shop in gaol.

39. He started consuming alcohol at age 12. Use of alcohol, cannabis and cocaine became increasingly entrenched during his teenage years. In his twenties, his primary substances of use were alcohol, speed and methamphetamine and in his thirties, heroin, gamma butyrolactone and “pills”. He was hospitalised for drug-induced psychosis about ten years ago. He was diagnosed with schizophrenia at the time and has intermittently been taking antipsychotic medication over the years. He has overdosed on heroin and gamma butyrolactone a number of times in the two years prior to the current offence. He reported that he had started going to Alcoholics Anonymous meetings and trying to rehabilitate himself on his partner’s insistence, but he relapsed after a short period.

40. Around five months ago, he was accepted into the injectable buprenorphine program at Clarence Correctional Centre. He said that the treatment, in combination with Alcoholics and Narcotics Anonymous meetings has dramatically changed his life. He has been abstinent since starting the program and has passed all urinalysis tests in gaol and he is sleeping and eating well and keeping fit. He recognises how destructive his drug use was. He wishes to continue his rehabilitation in the community by attending Fleet St Opioid Treatment Unit in Parramatta and seeking counselling within that service.

41. He is currently in a two year relationship. He reports a close connection with his partner’s two children from a previous relationship. His partner and her children are a significant motivating factor for the offender in making positive changes.

42. The offender told the psychologist that he remembers little of the offending because of his heavy drug use at the time. He reported that he was accompanying the co-offender and did not anticipate what transpired but did take responsibility for his part in the offence. At the time he was being threatened with eviction from his rental accommodation for being in arrears of rent but did not imply that this justified transferring the victim’s money into his account. He told the psychologist that if he had the opportunity, he would apologise to the victim.

43. The psychologist opined that he meets diagnostic criteria for sustained Substance Use Disorder and Substance/Medication-Induced Psychotic Disorder.

44. In his letter to the court, the offender expressed remorse for the current offence as well as his behaviour in the past decade. He recognised the likely impact of the offence on the victim.

Consideration

Objective Seriousness

45. The offence was premeditated and involved some planning. It was committed in company and the offenders presented a combined threat of violence toward the victim. The offence carried on over an extended period. There were threats of violence but no actual violence used. The value of the property taken was significant. The offenders obtained a total of about $8,500 from the victim, with the offender receiving $7,002 directly into his bank account.

46. The Henry guideline is applicable in these sentence proceedings: R v Henry (1999) 46 NSWLR 346. The guideline provides that where the offence is characterised by certain features, the head sentence imposed should fall between four to five years imprisonment. It should be noted that the Henry guideline related to late pleas of guilty where the appropriate discount was in the order of 10%. The guideline judgment is not prescriptive, but rather operates as a check or a sounding board for the imposition of an appropriate penalty: Legge v The Queen [2007] NSWCCA 244 at [40] and [48]–[59].

47. Due to the conflicting histories given by the offender it is hard to come to a finding that his upbringing was deprived. There is some support for the claim that he was the victim of sexual abuse through the church. I accept that he has a terrible history with drug addiction that has given rise to chronic mental conditions in the form of Substance Use Disorder and Substance Induced Psychotic Disorder. It is clear that he has had very little control over his addiction and his drug seeking behaviours for a long time. I am satisfied that his mental condition is a very serious one that reduces his moral culpability for the offence.

48. I have taken into account the maximum penalty for the offence.

Deterrence

49. General deterrence is significant when dealing with serious personal violence offences.

50. There is also a need for specific deterrence. The offender has a long criminal history for which he has spent some of each calendar year in gaol since 2009. His periods of imprisonment have been short and he has not been compliant with supervision orders, including parole orders. However, he has not been given a sentence exceeding three years, where he has had to apply for parole and demonstrate his willingness to reform. This offence represents a significant upgrade in criminality compared to the past. The offender needs to understand by reference to the penalty imposed, that if he continues to reoffend that he will be met with significant punishment.

Aggravating factors

51. The offence was committed in the home of the victim: s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999.

52. The offence was committed while the offender was on conditional liberty: s 21A(2)(j) Crimes (Sentencing Procedure) Act 1999. At the time of committing the offence the offender was on parole, having been released from custody about six weeks before the offence.

Mitigating factors

53. The offender has good prospects of rehabilitation: s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has been engaging with drug rehabilitation and psychological treatment in gaol. He has had considerable success with Buvidal injections in custody and has investigated where he can continue his treatment when he is released. He has a strong supportive relationship with his partner and her children and he is committed to reforming his ways for them. His current progress in custody represents a marked improvement in his attitude to life and dealing with his addiction issues. He has expressed prosocial plans for the future.

54. The offender has demonstrated remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. In his letter to the Court the offender accepted responsibility for his actions and has expressed remorse. I am satisfied that he is genuinely contrite.

55. I have taken into account the offender’s presentence custody. He was arrested on 16 August 2022. His parole order was revoked and he was ordered to serve the balance of parole that expired on 12 December 2022. Thereafter he has been bail refused for this matter only.

56. I have taken into account the restrictions imposed on prisoners in New South Wales to deal with the COVID-19 pandemic. I am satisfied that those restrictions have made the offender’s time in custody more difficult. I am satisfied that those restrictions will continue to be imposed for some time into the future.

Penalty

57. Nimilote Ngata is convicted.

58. I have had regard to s 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that having considered all other alternatives that no penalty other than imprisonment is appropriate.

59. I make a finding of special circumstances. The offender has significant drug related mental health conditions that will require him to be supported on his return to the community through a lengthy period of supervision. In addition, I am satisfied that he has reached a crossroads in his life and that he is committed to engaging with drug rehabilitation. It is appropriate to order a lengthy parole period to enable him to undertake suitable treatment, which may include residential rehabilitation. The offender will have to apply for parole. He will need to continue to demonstrate that he is committed to giving up drugs, that he is willing to be supervised and to engage with appropriate support services for the duration of the parole order.

57. Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 4 years with a non-parole period of 18 months to date from 13 October 2022. The non-parole period will expire on 12 April 2024 and the head sentence will expire on 12 October 2026.

58. The offender will be eligible to apply for parole on 12 April 2024.

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Decision last updated: 19 October 2023