Republic v Agege [2012] NRSC 8 (20 June 2012)

IN THE SUPREME COURT
REPUBLIC OF NAURU

Not Restricted

Crim case No. 80 of 2012

REPUBLIC OF NAURU
Prosecution

V

DELUKA AGEGE
Defendant

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JUDGE:	Eames, C.J.
DATE OF HEARING:	18 June 2012
DATE OF SENTENCE:	20 June 2012
CASE MAY BE CITED AS:	R v Deluka Agege
MEDIUM NEUTRAL CITATION:	[2012] NRSC 8

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CATCHWORDS:

Sentence – Robbery s.411 Criminal Code of Queensland 1899 (1st Schedule) – Aggravating element, used personal violence – Maximum penalty life imprisonment – Plea of Guilty – Offender aged 19 years – No prior convictions – Prevalence of offences committed against Chinese shopkeepers - Whether probation appropriate penalty.

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APPEARANCES:
For the Republic	Mr Wilisoni Kurisqila DPP
For the Defendant	Mr Knox Tolenoa (Pleader) and Mr Ashley Halphen

CHIEF JUSTICE:

1 Deluka Agege you have pleaded guilty to the offence of Robbery, contrary to s.411 of the Criminal Code of Queensland 1899 (1ST Schedule) Adopted. That offence carries a maximum penalty of 14 years’ imprisonment, but that maximum sentence is increased to life imprisonment if the offence is accompanied by one or more of the elements of aggravation stipulated in the section. In this case you have admitted to one of those elements of aggravation, namely, that immediately before the robbery you used personal violence to the victim of the robbery. The maximum sentence therefore is life imprisonment.
2 On 6 May 2012 you entered a mini store at Denig Location Block 29. It was 9.30 on a Sunday morning. The store was being minded by Ms Li Ying. You entered the store and asked if you could borrow her lighter to light a cigarette. She agreed and you walked to where the lighter was placed, near the cash drawer. You had not attempted to disguise yourself. You lit your cigarette and walked out the store and Ms Ying walked near the exit. You then walked back into the store and suddenly, and with extreme force, grabbed the woman from behind and applied a choke hold to her throat. The unfortunate woman, who was much smaller than you, was lifted off her feet as you applied pressure to her neck. She struggled desperately to free herself.
3 Finally, you released your grip when Li Ying pointed towards a CCTV camera that was filming the events. You snatched two packs of Twisties then fled the store and got on the back of a motor cycle that was being driven by another man, your uncle, who had been waiting for you. You then escaped. Police who later viewed the video were able to recognise you and you were arrested the same day. Police found you in the company of the other man, drinking alcohol. The arresting police officer said you were under the influence of alcohol when arrested.
4 You were released on bail on 6 May 2012. You were interviewed by police on 10th May. When interviewed you said that you had been heavily affected by alcohol when you entered the store. To many of the other questions you said that you forgot what had happened. Although I accept that you were affected by alcohol when you committed this offence I think it more likely that rather than having no memory of what you had done you just did not want to answer some of the questions, perhaps out of embarrassment.
5 The victim in this case, Li Ying, had been robbed at the same store only 14 days earlier. She was robbed on that occasion by Solomon Tom and threatened with a knife[1]. This unfortunate woman was then robbed by you, and choked, in terrifying circumstances. The video tape is chilling. She had been at great risk of serious injury or worse. In her statement Li Ying said that she was struggling for breath. It is not surprising that she feared for her life, as she said to police.
6 This offence occurred only about six weeks ago. You admitted your guilt immediately upon apprehension and pleaded guilty to this aggravated charge at the earliest opportunity. You did not require any witnesses to give evidence at your committal hearing, thus sparing your victim from that ordeal. You also have no prior convictions. At age 19 your youth is also an important factor in sentencing. All of those matters are strongly in your favour.
7 A pre-sentence report from a Probation and Parole officer has been tendered and that was supplemented by submissions from your counsel. What emerges from that report is the fact that you had been adopted at an early age and had lived with your aunt until she died early this year. Her death appears to have had a profound impact on you. After your aunt’s death you continued to live in her house, alone, and you were drinking heavily, as was the case when this offence was committed.
8 Mr Halphen, who appeared as your co-defence counsel, with leave pursuant to s.9(5) of the Legal Practitioners Act 1973, rightly pointed out that since your arrest you have made significant steps to demonstrate that you have strong prospects of rehabilitation and that I should be satisfied that your are unlikely to re-offend.
9 Not only did you plead guilty, but you have obtained employment, over the last three weeks, as a security officer reliever with Central Meridian. Also, you are in a relationship and your partner is expecting your child. In addition, since being arrested you have resided with another aunt, and you have given up alcohol, with your aunt’s strong encouragement. All of these factors weigh in your favour.
10 You left school at year 7 when aged 17 years. You had employment with Capelles for three months last year but had remained unemployed until you gained your recent employment.
11 You addressed the court during sentencing and said that you asked forgiveness and said that you would not come before court again. I regard that statement and your guilty plea as evidence of remorse.
12 I accept that the offence was relatively spontaneous, the lack of a disguise supporting that conclusion. I also accept that the offence occurred when you were unsettled in your life.
13 Mr Tolenoa submitted that you were a juvenile and imprisonment would be difficult as the prison did not have facilities for juvenile offenders. In fact, you are an adult, having attained 18 years: see s.65 Interpretation Act 2011. I accept however that you are young and that imprisonment in the antiquated Nauru prison would be arduous for you.
14 Mr Halphen submitted that this would be an appropriate case for a sentence of imprisonment of one year, followed by a period of probation. Sections 7(1) and (2) of the Criminal Justice Act 1999 allow for a combined sentence of imprisonment and probation only where the term of imprisonment is less than one year, and is followed by not more than 12 months’ probation. Mr Helphen submitted that appropriate conditions of probation could be imposed to ensure that your positive prospects of rehabilitation were encouraged. He submitted that you had turned your life around and the Court should not allow factors of deterrence to overwhelm all other sentencing factors.
15 I accept that this was an impulsive, spur of the moment, decision, an incredibly foolish one, which will have dire consequences for you.
16 The Director of Public Prosecutions submitted that this was a case which required a sentence that gave great weight to general deterrence. He cited a number of previous Nauru sentencing decisions for robbery where, he said, the range of sentences was in the order of 16 months to 4 years imprisonment. Those sentences had been imposed where the maximum sentence was 14 years for robbery, although nearly all of the cases did have serious aggravating factors such as use of a weapon, robbery in company, use of violence.
17 He submitted that the appropriate sentencing range for offences of aggravated robbery, that is, where the robbery is accompanied by aggravating features, should be in the order of 4 to 7 years. In support of that submission he cited a decision of Shameen J in the High Court of Fiji, decided in 2001: see State v Cava [2001] FJHC 288; [2001] 1 FLR 150. His Honour considered sentencing ranges in England and New Zealand and concluded that the New Zealand range of sentences were appropriate for Fiji. Mr Kurisaqila submitted that the range was also appropriate for Nauru. That range for aggravated robbery, he said, would be in the order of 6 to 8 years for robberies with firearms and 4 to 7 years for other examples of the offence, with the sentence being at the higher end of the range where vulnerable victims had been involved.
18 Whilst such reviews of sentences are interesting I do not consider that a rigid application of a sentencing range is appropriate, nor do I accept that what is said to be a range in one jurisdiction can be translated to another jurisdiction. All cases must receive individual assessment and the competing range of factors variously enormously from case to case. To demonstrate that point, Mr Halphen pointed out that notwithstanding the range which the learned judge suggested in the Fiji case of Cava, the actual sentence imposed was only 5 years’ imprisonment, at the lower end of the range, and yet that was a case of a professional robbery on a jewellery store by a group of men armed with cane knives. That suggests that a range is not always a good guide to what is appropriate in the individual circumstances of each case.
19 I agree with Mr Kurisaqila that there has been a prevalence of robberies against Chinese store owners and workers, often accompanied with violence, or with the use of weapons, often being impetuous decisions taken to obtain funds for drinking. As the video so clearly demonstrates in this case, these are not minor offences, but dangerous events that terrorise the victims.
20 Plainly, the many previous sentences imposed on offenders for offences such as these have not got the message across, and have not deterred offenders such as you from engaging in this conduct. Previous offenders have been sentenced on the basis that the maximum penalty available was 14 years’ imprisonment; that is the basis on which the prosecution presented past cases. The Director of Public Prosecutions, in this case, and in the case of Solomon Tom, has relied on the aggravating factor of using personal violence against the victim, as an element of the offence. You admitted to that aggravating factor, so the maximum penalty you face is life imprisonment. The sentence I will impose reflects that maximum penalty, but I nonetheless have regard for the fact that your case and that of Mr Tom, who was also sentenced today, are the first occasions on which the prosecution sought to raise the maximum available sentence from 14 years to life imprisonment.
21 Although the violence exhibited by you was a very bad example of these crimes, your personal factors and mitigating factors suggests that I should be cautious when assessing how much weight should be given to community deterrence in your case. General deterrence is nonetheless a significant factor that cannot be overlooked. I have to keep in mind, too, that had CCTV footage been available in other robbery cases, they would have been equally alarming as in your case.
22 Robbery with the sort of violence you used here must attract a sentence of imprisonment, even for a first offender, as you are. How severe that sentence should be is not an easy task to assess. Mr Helphen put a strong case for a maximum sentence of one year’s imprisonment followed by a year’s probation. There are factors that work in your favour and justify leniency, in particular your plea of guilty and your lack of prior convictions. I agree, too, that you have good prospects for rehabilitation.
23 I have given a lot of thought to your sentence. In the end, I do not believe that a sentence of 12 month’s imprisonment followed by a year’s probation would meet the community’s expectation of justice for such an offence. Your sentence will be very significantly reduced from that which I first thought appropriate, by virtue of the matters put on your behalf by your counsel, but a significant sentence of imprisonment must be imposed. Small shop owners and their staff must be protected from such nasty crimes, and these crimes must be deterred.
24 Deluka Agege, you will be convicted of robbery with personal violence and sentenced to 3 years’ imprisonment, commencing today.
Geoffrey M Eames AM QC
Chief Justice
20 June 2012

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^[1] See Republic v Solomon Tom [2012] NRSC 7