R v Sitiveni Ligaviu

[2007] NSWDC 134

CITATION:	R v Sitiveni Ligaviu [2007] NSWDC 134
HEARING DATE(S):	1/12/06 & 2/2/07
JUDGMENT DATE:	23 March 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	CONVICTED.; 12 MONTHS NPP COMMENCE 26/9/06 EXPIRE 25/9/07; FIND SPECIAL CIRCUMSTANCES; BALANCE OF TERM 13 ½ MONTHS TO EXPIRE 9/11/08.; ORDER RELEASE TO PAROLE 25/9/07; IMPOSE THE FOLLOWING PAROLE CONDITIONS (S51C (SP)A):-; ACCEPT SUPERVISION PP; OBEY REASONABLE DIRECTIONS OF CASE MANAGER OF P&P; ABSTAIN FROM ALCOHOL FOR THE FIRST 6 MONTHS OF PAROLE PERIOD ; SUBMIT TO RANDOM DRUG TESTING AT LEAST 3 TIMES MONTHLY FOR FIRST 6 MONTHS OF PAROLE, ANY DIRTY TEST OR FAILURE TO UNDERTAKE TEST WILL BE DEEMED A BREACH OF PAROLE AND BROUGHT TO PAROLE BOARD WITH MY RECOMMENDATION THAT THEY BREACH YOU FOR IT. ; ATTEND TREATMENT AND COUNSELLING PROGRAMS BY P&P INCLUDING DRUG & ALCOHOL, ALCOHOL MINIMISATION AND RELAPSE PREVENTION; DO ALL YOU CAN TO OBTAIN AND MAINTAIN FULL TIME EMPLOYMENT – PROFESSIONAL FOOTBALL SO QUALIFIES; PRESENT YOURSELF TO A RUGBY LEAGUE SIDE AND DO ALL CAN TO OBTAIN AND MAINTAIN A PLACE IN THE PLAYING SIDE OF THAT TEAM.; IF YOU CAN’T OBTAIN PROFESSIONAL FOOTBALL YOU ARE TO COMMIT TO SOCIAL FOOTBALL.
CATCHWORDS:	Criminal Law - Sentencing - Robbery in Company - essence of criminality - objective seriousness - aggravating features - subjective features - parity - imprisonment required
LEGISLATION CITED:	s21A, s51 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Gladue v The Queen [1999] 1 SCR 688 at [80]. R v Cuthbert (1967) 86 WN (NSW) Pt. 1 p272 R v Rushby [1977] 1 NSWLR 594 R v Hayes [1984] 1 NSWLR 740 R v Rause, unreported, NSWCCA 8th August 1992 Lovelock v The Queen (1978) 33 FLR 132 R v Thompson and Houlton (2000) 49 NSWLAR 383 R v Henry and others (1999) 46 NSWLR 340
PARTIES:	Regina Sitiveni Ligaviu
FILE NUMBER(S):	06/21/0260
SOLICITORS:	Crown: Ms J.R. Moir - Parramatta Office - Director of Public Prosecutions Accused: Mr Kennedy

SENTENCE

1 HIS HONOUR: At about 8pm on Thursday 25 August 2005 Nguyen Phan boarded a city-bound train from Punchbowl. The carriage he entered had two female passengers in the upper level. The complainant settled himself into one of the seats on his own. The two female passengers left the train either at Campsie or Canterbury. The complainant was alone in what I accept was a well lit carriage, making his way to the city or to some stop before the city.

2 Shortly after the train left Hurlstone Park, Sitiveni Ligaviu, Mossisi Ramaketa, Nathaniel Nakui, Nikita Lewis and two other males entered the area where Phan was seated. One male walked past him and positioned himself behind Phan. That person was Ramaketa. Seconds later Phan was punched to the right eye and the right side of his head. Ramaketa delivered these blows. Other males joined in, surrounding the victim. He was hit in the ribs.

3 Frightened in the extreme, he removed a black Nokia 8130 mobile telephone from his jacket. He attempted to call for help. The phone was plucked from his had by one of the robbers. Another began to search his pocket. Fearing further assault, Phan surrendered his wallet to one of the robbers. Credit cards and $800 were surrendered with the wallet.

4 One of the persons involved in the robbery whilst in the company of the others was Sitiveni Ligaviu. At his arraignment on 20 November 2006 he pleaded guilty to that offence. Today he is to be held accountable for it and for his criminal conduct in participating with others in the robbery of Nguyen Phan.

5 As the train pulled into Dulwich station, the next station after the robbery was completed, the six robbers alighted from the train. As they did so, one yelled to the victim, “You stay there”. All six then sprinted off from the station. The victim left the train at Marrickville and immediately reported the robbery to the stationmaster there.

6 As sentencing judge, it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this court committed by this offender harming this victim in this community. See Gladue v The Queen [1999] 1SCR 688 at [80]. My initial task requires an assessment of the objective criminality of the offence before the Court. I will also need to have regard to matters personal to the offender, subjective matters. The starting point for such assessments requires me to make findings of fact, or in this case, further findings of fact from the evidence before the Court relating to both the offence and to the offender. The offender’s rehabilitation prospects will need to be assessed, even if looking through a glass darkly.

7 Before any sentence can be made, there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality, parity, the length of the non-parole period and finally, of course, the ultimate length of the term of imprisonment to be imposed. None of these things can be done until the primary facts are determined. What weight needs to be given to all of these matters against the imperative that all sentencing should have as its primary focus the protection of the community will also need to be determined. See R v Cuthbert (1967) 86 WN (NSW) Pt 1 272, R v Rushby [1977] 1 NSWLR 594 and R v Hayes [1984] 1 NSWLR 740.

Additional Facts.

8 The offender claims in sworn evidence he was not one of the robbers who physically attacked the victim. He says he stayed on the stairs to call out if someone came. He claims he had not been told anything by Ramaketa. I am satisfied he well knew he was on the train for the purpose of robbing some unknown passenger. I am satisfied he well knew that the robbing of a passenger may well require some physical violence. I am satisfied he agreed to be party to the unlawful taking of money by the group on the train that he was a member of. I am satisfied he received some of the proceeds of that robbery because he was a member of the group; that is, he was one of the robbers, and not for any other reason.

9 I accept that one of the robbers was tasked with guarding the stairs, for two reasons: to warn in the event of anyone, particularly rail security, coming in the direction of the robbers. I am also satisfied the purpose of placing a robber on the stairs was to block an escape route the victim might try to use.

10 I did not find Sitiveni Ligaviu an impressive witness. He claims he was the one assigned to the stairs. I regard that claim as probably self-serving. In any event, the role he claims was an important role in the robbery. In that role he made more secure the robbers’ chances of success without detection. Nor do I accept his share of the proceeds of the robbery was limited to $50. That may not matter much because I am satisfied most, if not all, of the proceeds was spent on alcohol and probably drugs in which all members of the group shared. I am satisfied the motive for the robbery was to obtain money for that purpose.

11 I sentenced Ramaketa on 2 June 2006. In my remarks on that occasion I described him as the leader of the group. There is nothing I have read in the facts of this case that causes me to change that finding in this case.

12 I repeat my assessment of the objective criminality that I set out in Ramaketa’s case when I said,

“I turn now to the objective criminality. From the facts as he finds them to be, the sentencing judge is required to assess the objective criminality of the [offence] as an essential step in assessing the seriousness of the criminal behaviour undertaken by this offender. That is done by comparing objectively the criminality exhibited in the instant offence with the criminality of offences of a similar kind. It is in that way that the seriousness of the criminality of this offence can be evaluated. The objective criminality of an offence obviously has an important impact on the overall sentence to be imposed.

A useful starting point in assessing the objective criminality of robbery is to remind myself of the remarks of the Chief Justice Gleeson when Chief Justice of New South Wales. His remarks encapsulate the essence of the legal wrong done by robbers and the reason why a substantial punishment is required. Chief Justice Gleeson said,

‘One of the primary purposes of the system of criminal justice is to keep the peace. In this connection the idea of peace embraces the freedom of ordinary citizens to walk the streets and to go about their daily affairs without fear of physical violence. It also embraces respect for the property of others. Offences of the kind committed by the present [offender] are not trivial instances of disrespect for private property. They are direct attacks upon the security of the person and the property which the law exists to protect.’ R v Rause unreported, NSWCCA 8 August 1992.

The essence of robbery is the use of force to overcome the will of the victim to such an extent that he surrenders to the robbers goods and money he would not otherwise have given up. The force charged here is the use of numbers, that is, more than one person so that the victim is outnumbered. Indeed, in this case the number of the robbers was equivalent to a rugby league scrum. Robbery in company is accomplished when two or more persons commit a robbery.

13 This robbery targeted a citizen travelling on public transport in circumstances where that person was outnumbered, isolated, with escape routes blocked by his attackers and the robber who manned the stairs. It occurred between stations whereby the victim’s isolation became the greater. Even if he successfully fled the robbers on the train, he could not flee the train and complete his escape. Further, the prospects of discovery and detection are greater at stations where CCTV cameras are operating or when potential victims are alighting or entering into the carriage. The demand that the victim remain in the carriage was to increase the robbers’ prospects of escape and avoiding detection.

14 The victim, being alone and so significantly outnumbered, was vulnerable to these robbers. The two robbers I have seen are both powerfully built young men. Each has told me he is interested in furthering his football career to representative level. Each has a physique that would permit or accommodate such an ambition. Their presence as part of that group of robbers would have added to the feeling of despair, vulnerability and fear their victim felt.

15 The robbery was planned. While it may well be that the robbers hoped for someone who would be drunk or drugged so he could be ‘rolled’ without much violence, the fact is Mr Phan was selected as an appropriate target. This offender, if he be the one that stayed at the stairs, knew to do so as his cohorts approached the victim. The selection of the victim, the striking of him between stations, the alighting at the stop immediately following the robbery, and the presence of all six robbers satisfies me it was a planned event. When the plan was hatched, I am unable to say. But I am satisfied that by the time they joined the train, at that time, the plan had been hatched and the joining of the train was putting that plan into operation.”

16 Quite clearly, on its objective facts, this is an offence requiring significant imprisonment for those who participated in it.

17 I have had regard to matters of aggravation enumerated in s 21A of the Crimes (Sentencing Procedure) Act 1999. I have sought to deal with all matters of aggravation by relying upon the common law and the relevant factors of aggravation recognised by it in assessing the objective criminality. This is not a case where I would regard factors of aggravation being so prominent as to require them to be considered anew by reliance upon the statutory provisions contained in s 21A.

Subjective matters.

18 I turn now to the subjective matters. I am both entitled and required to do that. Not only am I sentencing for the criminal offence before the Court, but I am also sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to this offender may offer the Court some explanation and insight into his commission of these offences and some reason why a more or a less sentencing outcome is appropriate.

Family dynamics and social background.

19 Sitiveni Ligaviu, born in June of 1987, is not yet twenty years old. At the time of the offence he was aged eighteen years and two months. His family migrated to Australia from Fiji in 1989. At that time he was two years old. He is the eldest of three boys; the others are aged sixteen and five. His parents and a substantial portion of his extended family live in Sydney. There appear to be no issues arising out of his upbringing; his family is reported as being a happy, supportive one. He practised as a Seventh Day Adventist. Religion was an important component of their family life. His parents both hold down employed positions. His family has remained supportive throughout his incarceration. He has maintained regular contact with them in visits and via phone. His parents have been in attendance when the matter has been before me. His post release plans, apparently supported by his parents, are to return to his family home.

Education/employment history and other skills.

20 At the time of his arrest he was still, at least, notionally attending Belmore High School. His attendance in the senior years had declined, leading to a deterioration in his academic achievements. Truanting had become regular. That led to him associating with a peer group whose influence on him was negative. That in turn led to him becoming in greater conflict with the law. He would seem to have worked as a storeman and packer at Bellway for three to four days a week for a period packing soap and noodles. That provided him with an income stream of about $400 weekly.

21 His major skill is as a rugby league footballer. He hopes to achieve professional status. He has played junior representative football with St George. He has the physique and skills to play at a professional level, but appears to be doing all he can to ruin his prospects of playing in the senior ranks as a professional sportsman. He has engaged in antisocial, criminal behaviour. He has abused drugs. He has involved himself in binge drinking. Upon his release he will soon learn that First Division football clubs will be reluctant to sign on anyone, however skilled, who is likely to bring their club into disrepute.

22 He has told Probation and Parole he would like to complete the Higher School Certificate through TAFE. During custody he has obtained his green card and occupational health and safety certificate. They are both useful qualifications in the construction industry.

General health.

23 I have already commented upon his physical appearance. There is every reason to believe he is, as a twenty year old, in excellent physical health.

Mental health.

24 I have no evidence before me to suggest there are any significant mental health issues.

Drug and alcohol issues.

25 I am satisfied there are serious alcohol issues. He conceded he is a binge drinker, particularly after football matches. He has also abused cannabis. The pre-sentence reports he has minimal insight into his alcohol and cannabis use, or it should really be abuse. He does not consider he has a problem with them. He is wrong.

26 On his own account he had been drinking when he committed this offence. That clearly establishes he has a problem with alcohol. It led him into antisocial behaviour on this occasion and quite probably on others (I am referring to matters in his criminal record). Although he enrolled in a drug and alcohol course whilst in custody, he has yet to start it.

Attitude to offence.

27 Sitiveni Ligaviu gave evidence that he felt sorry for the victim of his offending conduct. The pre-sentence reports him as lacking insight into his offending, minimising his role in the event. He does not accept responsibility. His evidence can be tested by subsequent entries on his criminal record.

28 In November 2005 he used an offensive weapon to commit an indictable offence. In June 2006, he drove a conveyance without the consent of its owner. I am satisfied he recognises his offending conduct has placed him in gaol. He finds that situation hard, uncomfortable and probably confronting. There is a sadness he is experiencing that his offending conduct has seen him lose his liberty. That is to say, his contrition is more about the consequences to him than it is about the consequences to his victim. It is unlikely he understands the post-traumatic aftermath victims experience for weeks and sometimes longer after a trauma of robbery having the violence of this robbery.

Character and criminal antecedents.

29 This offender is but nineteen years old. His character is still forming. To date, the negatives seem to outweigh the positives. He has lacked commitment to schooling, he is doing all he can to ruin his prospects for football career, he has little work history and no great work skills. He appears to be self-centred and immature. He does however, have great potential. He is capable of further study and claims to be interested in doing his higher school certificate. He has elite level skills at football provided he does not undermine them with drug and alcohol abuse and associated antisocial behaviour.

30 Regrettably, his criminal antecedents suggest he has been out of control since this 2005 offence. This offence represents his first criminal offending. However, since then he has used an offensive weapon to commit an indictable offence. He has possessed implements to enter a conveyance and taken a conveyance without the consent of its owner. He has been found guilty of larceny and has failed to appear in accordance with his bail undertakings, for which he was sentenced to the rising of the Court.

31 While none of these matters aggravate the criminal conduct with which I am dealing, they do present a worry in assessing his claimed contrition for his offending. They are also of concern when assessing, as I must do, his rehabilitation prospects.

Guilty plea.

32 This offender has pleaded guilty at arraignment. He was committed for trial on this charge on 14 August 2006. That is, a year after the offence and seven months after his arrest. The delay would, in part, appear to be because of his failure to appear at the Local Court on 24 April 2006. That failure to appear is important when assessing the utilitarian value of his plea. I have determined to permit a fifteen per cent discount for the utilitarian value of the plea.

Rehabilitation.

33 It is to be remembered that this offender had just turned eighteen at the time of offending. Rehabilitation is always an important factor to be considered in case where youth is a feature. The sentence should, where other legal principles permit, seek to give emphasis to rehabilitation. Frequently that can be done by structuring the sentence so that there is a greater proportion of the sentence served in the community, see The Queen v Pham per Hunt. I think it is AJA at that stage.

34 An assessment of this offender’s rehabilitation prospects suggest serious oversight of him will be required once he is released from custody. Positive factors include the following:

• A strong family support including practical support such as post-release accommodation.
• Reasonable prospects of employment, hopefully through the father’s assistance.
• Excellent general health and the absence of mental health issues.
• Elite football skills that potentially can be harnessed at professional level, otherwise they can be harnessed as a bases of healthy community social contact and a source of improved self-image.
• Useful supportive contacts with the pastor of Hillsong church at Waterloo. Hopefully that can be harnessed into supporting and mentoring the offender, particularly during his post-release period.

• Custody, some progress made whilst in custody, the green card, the Occupational Health and Safety Certificate, the pre-sentence reports that he has worked well in the metal shop and done a computer course of some kind.

35 However, there are serious warning signs that will need to be addressed, again, particularly in the community.

• Recent post-offence criminal history suggests antisocial conduct issues arise probably after the consumption of alcohol and/or drugs (cannabis). There is a myth about, that cannabis is a soft drug. Cannabis is a drug that is very closely associated with aggression and paranoia.
• Recent real problems with alcohol, binge drinking and cannabis consumption.
• A weak employment record and poor commitment to education in the recent past suggests a lack of commitment to those areas.
• The offender lacks insight in the seriousness of the offence he participated in. He also lacks insight into the seriousness of his role in that offence, whatever it was. He also lacks insight into the seriousness of his alcohol and probably his drug abuse problem.

Setting the sentence.

36 This is an offence, not withstanding the youth of the offender, that calls for general deterrence. That is because, in this case, robberies of this kind are seen as adult offences rather than the misdemeanours associated with children.

37 In modern Australian society, there is a very extensive raft of criminal laws passed by the federal and state parliaments. The chief purpose of the criminal law put in place by parliaments, is to deter the citizens of the state from committing criminal offences. Parliament does that by prescribing maximum penalties for those who engage in conduct prohibited by the criminal law. For example, the maximum penalty for this offence is twenty years imprisonment. Consequently when an offender is sentenced for a breach of the criminal law, he or she is exposed to the possible maximum penalty provided for by the statute breached.

38 Sentencing for breaches of the criminal law requires the sentencing judge, when fixing an appropriate sentencing disposition, to keep in mind those maximum penalties for the purpose of general deterrence aimed at the community at large. There is also a specific deterrence aimed at individuals likeminded to the offender, in particular, I have in mind the two offenders who have not yet been caught, who but for such deterrence, would be willing to commit such crimes in the community. Finally, there is a component of deterrence to be considered personal to this offender, with a view to deterring him or her for from re-offending.

39 This offender has now spent nearly ten months, I think it is, in custody. He will have more to spend. He has heard his conduct denounced by a judicial officer of this Court. He has been before the Local Court for committal. He has been charged at the police station. He has, or must be, aware of the concern or shame that he has brought to his family. In my view, all of that, coupled with the sentence that I am about to impose, is sufficient personal deterrence for him, parity.

Parity.

40 Parity means comparing the sentence this offender gets by comparison with the sentence given to others in the group that offended with him. Ramaketa’s was sentenced for three robberies. For each he was sentenced to a non-parole period of fifteen months and a balance of term of twelve months, making an overall sentence of two years three months. The starting point for each of those sentences had been three years. That three year starting point had been discounted by twenty-five in his case.

41 I was more impressed with Ramaketa’s subjective features than I am with the present offender’s. He pleaded from the outset. I have assessed his rehabilitation prospects as better than this offender’s. While he was older, he was still young enough for rehabilitation to be an appropriate focus.

42 On the other hand this offender is, as I understand it, three years younger, is involved in only one robbery in company, although objectively, it was the worst of them. This offender lacks insight into his offending conduct and his alcohol abuse issues. His discount for the plea is only fifteen per cent.

43 The other offenders were juveniles sentenced by the Children’s Court. That jurisdiction has a substantially different focus to sentencing than does this Court when dealing with adults. Consequently, sentences for children do not have the severity that can be expected in the adult court.

44 Lovelock v The Queen (1978) 33 FLR 132 and other cases establish that subjective matters and respective roles in offences, can lead to variation in sentence. Before I move from the juveniles, I should note that one was given twelve months supervision without conviction, the other was given twelve months probation without conviction. A compensation order was made against the second one, that is Lewis, in the sum of $800.

45 The parity principle demands the starting point for this offender should be something less than three years overall. For reasons I have given, the parity issue thereafter, must play less weight.

Impact of the guideline judgment.

46 Two guideline judgments play a part in this sentencing discretion. R v Thompson; R v Houlton [2000] NSWCCA 309 (17 August 2000) in respect of the guilty plea and R v Henry 106 A Crim R. 149 in respect of the actual offence for which this offender stands to be sentenced. Guideline judgments play an important part in ensuring consistency in sentencing. They also clarify and enumerate the relevant principles of sentencing that may impact upon the sentencing discretion. I am familiar with both guideline judgments and to the benchmark, or the guideline if you like, that was set in Henry.

47 This is a case in which it is appropriate to find special circumstances. That means that in this case, it will be appropriate to give a longer than what is called normal, parole period by comparison with the rest of the sentence. My reasons for so finding include:

• Youth of the offender and the need for emphasis on rehabilitation.
• Importance of personal deterrence.
• This is the offender’s first time in custody.
• The issue of a partly concurrent sentence of six months all up for unrelated matters.

Custody.

48 Ligaviu was refused bail on 27 June 2006. He was sentenced as I say, for unrelated matters to a total of twelve months imprisonment with a six month non-parole period. Those sentences were to date from 26 June 2006. My understanding is that the non-parole period expired on 25 December 2006 and the balance of term on 26 June 2007.

Totality.

49 I need to consider giving effect to totality for the sentence that I am about to impose and the sentences this offender is currently serving. That is, the sentences imposed at the Burwood Local Court on 24 July this year. I intend to make this sentence partly concurrent and partly cumulative with his present sentence. The sentence I impose will commence on 26 September 2006. But for the plea of guilty, I would have sentenced this offender to an overall sentence of two years and six months. I have discounted that figure by four and a half months, that is, the fifteen per cent. The net overall sentence therefore is one of two years and one and one half months. Would you stand up please.

50 Sitiveni Ligaviu, I convict you of the offence that you on 25 August 2005 at Hurlstone Park when you, being in company with others, robbed Nguyen Phan of a wallet with a sum of money and cards and a mobile phone, all of which were his property.

51 I sentence you to a non-parole period of twelve months to commence on 26 September 2006 and to expire on 25 September this year. I find special circumstances as I said.

52 I set a balance of term of thirteen and one half months to expire, on my calculation, on 9 November 2008.

53 I order your release to parole on 25 September next.

54 Pursuant to section 51 of the Crimes (Sentencing Procedure) Act I impose the following parole conditions:

That you will accept supervision by Probation and Parole.

You will obey all reasonable directions of your case manager with Probation and Parole.

You will abstain entirely from the consumption of alcohol for the first six months of your parole period. That is to say, any consumption of alcohol for any reason, say Christmas Day, in your first six months will be a breach of your parole and could see you back in custody. Do you understand that?

You will submit to random drugs tests at least three times monthly for the first six months of your parole. Any dirty tests, any failure to participate in a test, will be deemed a breach of your parole and is to be brought to the attention of the Parole Board. That is not me, it is somebody else, with my recommendation that they breach you for it.

You are to attend treatment and counselling programs as required by Probation and Parole including drug and alcohol, alcohol minimisation, that means learning to drink slowly and not much and drug relapse prevention.

You are to do all you can to obtain and maintain full time employment and incidentally, I would regard professional football as full time employment.

You are to present yourself to a rugby league side nominated by you and do all you can to gain selection in that side and to maintain a place in the playing side of that team. Now, if you cannot make professional football, you are to commit to social football, for the reasons I gave earlier that they are good social contacts for you to make. Do you understand all that?

OFFENDER: Yes your Honour.

HIS HONOUR: Good. Right, you may be returned to custody.

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