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Police v Nauer [2024] WSSC 99 (12 November 2024)

IN THE SUPREME COURT OF SAMOA
Police v Nauer [2024] WSSC 99 (12 November 2024)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

A N D:

CONRADE COURADE NAUER aka LAKI NAUER, 31 year old male of Lotopa, Satapuala and Falelauniu.

Accused

Counsel: F Laurence and J Leung Wai for Prosecution
Accused Self-Represented

Sentence Submissions: 27 June, 04 July, 22 July, 26 July, 13 August, 30 August, 13 September, 20 September and 10 October 2024.
Sentence: 12 November 2024

SENTENCE

The Charges

1. After a disputed Summary of Facts hearing, Laki disputing the charge of aggravated robbery, seeking to engage counsel, retracting his right to engage counsel and protracted sentencing submissions, you now appear for sentence Laki on one charge of aggravated robbery. This charge carries a maximum penalty of up to 14 years imprisonment.

The Offending

2. According to the Amended Summary of Facts dated 12^th September 2024 which reflects the facts accepted by you and those I accepted as proven following the disputed Summary of Facts hearing, on the 4^th May 2024, you went to the Utopia Supermarket at Lotopa at approximately 12.00pm. You entered the store and went directly to the victim. When you reached the victim, you partially withdrew a 7.65mm pistol tucked in the front of your pants and showed it to the victim. You then said, “Alu totonu o le taavale pe faga oe.” The victim was frightened causing her to call out to her supervisor. You subsequently grabbed the victim’s Oppo 03 cellphone that was on the counter and walked out with it to your car and “fled” the scene.
3. When the victim’s mother later arrived at the Utopia Supermarket, she and the victim reported the matter to police. From the victim’s evidence, later that day, she called you on her phone. You met with the victim and returned her phone.

The Accused

4. You are a 32 year old male of Lotopa, Satapuala and Falelauniu. You are married with 3 children. You are the fourth of eight children and went to school until year 11. You started work with SL Refrigeration and then went to work at your father’s mechanic shop. Your mother describes you as reliable and someone who puts your family first. She asks for the court’s clemency.
5. You have confirmed your prior conviction record produced by police. This shows convictions for intentional damage, dangerous driving and unlicensed driving entered on the 25^th August 2017. On the 18^th December 2017, a single conviction for intentional damage is recorded. The police prior conviction record however is incomplete and inaccurate. In my sentencing decision in Police v Nauer [2017] WSSC 161 (18 December 2017) where I sentenced you Laki to three years imprisonment, you were convicted of a raft of charges set out in my sentencing decision as follows, which should also have been recorded by police:
   • (i) S1777/17 - Intentional damage risk to life;
   • (ii) S1771/17 – Intentional damage;
   • (iii) S1775/17 - Intentional damage;
   • (iv) S1779/17 – breaking prison;
   • (v) S1772/17 – dangerous driving; and
   • (vi) S1773/17 unlicensed driving, S1774/17 threatening words, S1778/17 driving an unregistered vehicle and S1780/17 trespass on to Tafaigata Prison.

The Victim

6. The victim is a 19 year old female from Moamoa. She is single and works as a store person at the Utopia Supermarket at Lotopa. In her Victim Impact Report, the victim speaks of her shock and fear at what occurred that day at work involving a gun. As a result, she has not returned to work nor go around because of fear that it might happen again to her.

Aggravating & Mitigating Features

7. The aggravating factors of your offending are:
   • (i) the offensive weapon you were armed with was a gun;
   • (ii) your robbery of the victim was in a commercial retail store, open to the public;
   • (iii) you made a threat to the victim about shooting her; and
   • (iv) the impact of your offending on the victim, disclosed in her VIR.
8. I do not accept that your offending was premeditated, as suggested by prosecution. During the disputed Summary of Facts hearing, I had the benefit of viewing security video footage from inside the store. That footage shows your actions of the taking the phone from the counter as opportunistic, and not premeditated.
9. In terms of mitigating features of your offending – two mitigating features to your offending are that you voluntarily returned the phone to the victim and there was no actual violence, a matter I address in more detail in my discussion that follows.
10. Aggravating features personal to you is your prior conviction for intentional damage at Tafaigata Prison. While it is of a different nature, the intentional damage inflicted at Tafaigata Prison involved a degree of violence involving the ramming of the prison gates endangering life. This case involved the threat of violence.
11. In terms of mitigating features personal to you as an offender, I take into account the following:
    • (i) I accept that you are genuinely remorseful and regret your actions, reflected both in what you told me and what is stated in your Pre-Sentence Report; and
    • (ii) Your guilty plea.

Discussion

12. While the Amended Summary of Facts gives a sterile picture of the events, I had the benefit of also viewing the video security footage tendered during the disputed Summary of Facts hearing which gives context to your offending. Your offending Laki is very peculiar. It is peculiar because your robbery was not typical of many robberies involving outwardly aggressive and violent behaviour, the wearing of a disguise or concealment of your identity, or you rushing in and out of the store. The video footage D07 at approximately 11.40am for example shows you go the victim, exchange words and walk to the counter laughing. In video D03 at 11.40am, the cashier at the counter who observed your interaction with the victim can be seen to be laughing too when you go to her counter. You then return to where the victim is in an apparently light hearted manner and took the victim’s phone. After you took the phone, video footage D03 shows that you walked past the cashier who said words to you as you left, and she appears to also engage in a casual light hearted manner with you as you walked out. You were in the shop for approximately 1 ½ minutes. After you left the shop, the cashier is seen in video footage D16 at approximately 11.42am come to you when you were in the car and talk further with you. She can be seen interacting with you in what again appears a lighthearted manner, even as you appear to take the gun from the dashboard of your car.
13. The robbery you committed is starkly different to the planning, violence, aggressive threats and terror instilled in victims at the time commonly characteristic of this type of offending. While your behaviour and the circumstances of the robbery is peculiar, what is clear however is that your actions have had a real impact on the victim. While very strangely, you robbed the victim in what seemed to you to be a light hearted or perhaps comedic manner, it was certainly not that. You flashed a gun, made a statement to the victim about shooting her and you then took her phone. For the victim, it was an understandably frightening experience.
14. Laki, prosecution seeks an imprisonment term with a start point of 3 ½ years imprisonment. This was an increase from the initial submission of a 2 ½ year sentence start point. In the New Zealand case of R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 referred to by prosecution, the New Zealand Court of Appeal stated:
    • “[54]... The robbery of commercial premises where members of the public can be expected to be present, targeting substantial sums in tills or a safe by a group, with a lethal weapon, disguises and other indications of preparation, should attract for adult perpetrators after a defended trial a starting point of six or perhaps more years. Where firearms are loaded or the danger of harm is increased in other ways, or if actual violence is used, the starting point would be eight years or more...
    • “[56] A further example can be given taking another combination of features typical of many aggravated robberies. This envisages a robbery of a small retail shop by demanding money from the till under threat of the use of a weapon such as a knife after ensuring no customers are present, with or without assistance from a lookout or an accomplice waiting to facilitate getaway. The shopkeeper is confronted by one person with the face covered. There is no actual violence. A small sum of money is taken. The starting point should be around four years.”
15. In Mako, the New Zealand Court of Appeal also addressed what it described as offending at the other end of the scale. The Court of Appeal stated:
    • “[59] At the other end of the scale would be street robbery by demanding that the victim hand over money or property such as an item of clothing, where a knife or similar weapon is produced or where offenders acting together by bullying or menacing conduct enforce the demand though no actual violence occurs. Depending upon the circumstances the starting point would be between 18 months and three years. Actual physical enforcement might well require a higher starting point.”
16. I have reviewed the authorities referred to by prosecution. Police v Pio [2019] WSSC 19 in my view is more serious than this case. It involved a premeditated robbery involving multiple assailants inflicting actual violence committed against a taxi driver. In Police v Ioelu [2013] WSSC 129, that case of aggravated robbery involved two assailants who inflicted actual violence against the victim including multiple kicks to the victim while on the ground to his face and head. Both these local cases involved a three year sentence start point. Police v Faatau [2014] WSSC 75 and Police v Aukustino Faafua [2021] also involved more aggravating features involving multiple assailants, actual violence weapons.
17. What however makes your offending serious is the flashing of a gun, the threat uttered and the impact your offending has had on the victim. Bearing in mind the aggravating and mitigating features of your offending and the comments I have made, the appropriate start point for sentence is 2 years and 6 months imprisonment. This type of conduct cannot be condoned. Had your actions involved other acts that I have referred to that generally accompany robberies, the start point would be substantially higher. I uplift that start point by 3 months for your prior convictions. From 2 years and 9 months, I deduct 6 months for your remorse and contrition. From the balance, I deduct 5 months for your guilty plea leaving an end sentence of 1 year 10 months imprisonment less remand in custody. Your guilty plea deduction would have been greater but for the disputed Summary of Facts hearing.
18. Before I conclude Laki, I want to say a few words to you. When I sentenced you in 2017, you had committed a brazen and very foolish act driving a van and ramming the gates of Tanumalala Prison in a drunken effort to get your father out of prison. You were a younger man with only a 4 month old child at the time. Since then, you had not re-offended until now and you are now the father of three children. Like 2017, your mother has been here to support you every day your matter has been before the Court.
19. Laki, you seem to offend in opportunistic and very foolish circumstances – where common sense seems to escape you. You are now 32 years old and it is obvious to me that you have many talents and the potential to lead a successful life if you chose to be law abiding and stopped behaving so foolishly. You would no doubt prefer to be at home with your wife, children and family than in prison. I encourage you to reflect on what you have done, work hard to change your ways and I sincerely hope you do not appear back in court again.

Result

20. On the charge of aggravated robbery, you convicted and sentenced to 1 year 10 months imprisonment less remand in custody.

JUSTICE CLARKE