IN THE DISTRICT COURT OF NAURU
AT YAREN
CRIMINAL JURISDICTION

Criminal Case No. 24 of 2024

BETWEEN: 			THE REPUBLIC OF NAURU
PROSECUTION

AND:				RAINER DONGOBIR
DEFENDANT

BEFORE:			Resident Magistrate Mr. Vinay Sharma

DATE OF HEARING:	1 August 2024 

DATE OF SENTENCING:	8 August 2024

APPEARANCE:
PROSECUTION:		S Shah 
DEFENDANTS:		S Hazelman

SENTENCE

BACKGROUND

1.	The defendant is to be sentenced for the offence of being found in unlawful possession of 2.3 grams of cannabis in contravention of section 6(a) of the Illicit Drugs Control Act 2004 (“the Act”), and for escaping from lawful custody in contravention of Section 229 of the Crimes Act 2016.  

2.	The defendant is charged as follows:

CHARGE

Count 1

Statement of offence (a)
UNLAWFUL POSSESSION OF AN ILLICIT DRUG: Contrary to Section 6(a) of the Illicit Drugs Control Act 2004.

Particulars of offence (b)
RAINER DONGOBIR on the 22nd of July, 2024, at Denig District in Nauru, without lawful authority was found in possession of 2.3 grams of cannabis that is an illicit drug.

Count 2

Statement of offence (a)
ESCAPE FROM CUSTODY: Contrary to Section 229 of the Crimes Act 2016.

Particulars of offence (b)
RAINER DONGOBIR on the 23rd of July, 2024, at Yaren District in Nauru, escaped from lawful custody.

3.	On 12 July 2024 the defendant entered a plea of “guilty” to counts 1 and 2 of the charge laid against him.  Thereafter, Mr Shah read out the Summary of Facts, which was also filed on the same date.  The defendant accepted the Summary of Facts.

4.	On 22 July 2024 Mr Shah filed Sentencing Submissions by the Republic.

5.	On 1 August 2024 the defendant’s counsel filed the defendant’s Mitigation Submissions.

6.	On 1 August 2024 the parties were heard on the sentencing submissions and plea in mitigation.

7.	The court has considered the sentencing and mitigation submissions and proceeds with the sentencing.

facts SURROUNDING THE CIRCUMSTANCES OF THE OFFENCE

8.	The following are the facts surrounding the offence as provided in the Summary of Facts:

i.	On the 22nd of June 2024 PW1 – Constable Conzaly Detebene was responding to a domestic disturbance in Aiwo District.  While on his way to his police vehicle PW1 could smell cannabis.  PW1 then heard talking near the bushes, he walked up to the bushes and saw a treehouse.  PW1 saw a person climbing down from the stairs to the treehouse.

ii.	PW1 climbed up the stairs and proceeded into the treehouse where he saw the [defendant] sitting down with two others.  PW1 saw that there was a small sealed plastic bag which contained dried leaves and a smoking apparatus in front of the [defendant].  The two other individuals fled the scene.  PW1 then gave the [defendant] his rights and allegation and escorted the [defendant] to the police vehicle for transfer to the central police station.

iii.	Sergeant Iyo Adam – PW2 and Sergeant Danlobadhan Botelanga – PW4 tested the seized dry leaves using the Narcotics Identification Kit (NIK), the result tested positive for cannabis… Officer Reweru then took photographs of the illicit drugs, tagged and kept in safe custody at the exhibit room…

iv.	On 23rd June 2024, PW4 – Senior Constable Chrisman Gioura was on duty at the Nauru Police Force front desk when he heard the [defendant] calling out.  Being the only officer at the front desk, PW4 proceeded to the watch house area and the [defendant] asked PW4 if he could use the toilet.  PW4 then escorted the [defendant] to the toilet outside the front desk since the toilet in the cell was not working.  PW4 while waiting on the [defendant] received a report and proceeded back to the front desk.  Upon arriving back at the toilet and calling out the [defendant’s] name, there was no response.  PW4 opened the toilet door and saw the accused was not in there.

v.	On the 30th of June 2024, PW5 – police recruit Joshua Garoa and Constable Cha Dageago were on foot patrol in Denig District when they came across three individuals seated outside.  One of the individuals was the [defendant].  PW5 proceeded to arrest the [defendant] and gave him his rights and the allegation.  The [defendant] was then escorted down to the Police Station.

PERSONAL CIRCUMSTANCES OF THE DEFENDANT

9.	The following are the relevant personal circumstances of the defendant which is distilled from the document filed by the defendant and the Pre-Sentence Report:

i.	The defendant is 23 years old, and he lives with his father and 3 other siblings.  He is the second eldest of the 4 siblings.  His mother passed away a few years ago.                                                                

ii.	Prior to this case, the defendant was employed with the Egigu Corporation as a Human Resource officer and earned approximately $400.  The defendant assisted his family financially.

iii.	The defendant completed his education at Nauru Secondary School

iv.	The defendant suffers from heart issues and received monthly injection to maintain his heart issue.  However, there is no medical evidence to support this.

AGGRAVATING FACTORS

	Count 1
10.	There is no aggravating factor for count 1.

Count 2
11.	For count 2 the only aggravating factor is that the defendant was at large for 7 days.

MITIGATING FACTORS

Counts 1 & 2
12.	The court finds the following mitigating factors in favor of the defendant for counts 1 and 2:

i.	There is a high chance for rehabilitation.

ii.	The defendant is remorseful.

iii.	The defendant is a first-time offender.

OBJECTIVE SERIOUSNESS OF THE OFFENDING 

13.	The defendant pleaded guilty to being found in unlawful possession of 2.3 grams of cannabis, and for escaping from lawful custody.  

Count 1
14.	The maximum penalty under Section 6(a) of the Act is a term of imprisonment for 10 years and a fine not exceeding $50,000.  

15.	In The Republic of Nauru v Perndergast the District Court made very useful observations with regard to the classification of illicit drugs and the seriousness of the different types of offending under section 6(a) of the Act.  I adopt the same method of classification and find that cannabis is considered to be a “soft drug”.  It also falls into the category of illicit drugs which would attract lower penalties compared to “hard drugs”.  Further, “possession” is the least serious act prescribed under Section 6(a).

16.	In light of the defendant’s personal circumstances, aggravating and mitigating circumstances, and his moral culpability, the court finds that the objective seriousness of the offending for count 1 is at the lower end of the level of seriousness.

Count 2

17.	Pursuant to Section 229 of the Crimes Act 2018, the penalty for escaping from lawful custody is a term of imprisonment for 5 years.

18.	Blackstone “Criminal Practice” 2012 Edition at B14.64 provides as follows:

In Purchase [2008] 1 Cr App R (S) 338 the Court of Appeal suggested that ‘escape’ cases fell into two categories. The first category included cases where a prisoner escaped under some personal pressure to do so, where sentences would be measured in months. The instant case involved a prisoner who absconded from an open prison and was at large for a fortnight. During that time he got into further trouble. A sentence of nine months’ imprisonment, consecutive to the existing sentence, was upheld. See also Banks-Nash [2007] 1 Cr App R (S) 87, where 12 months was reduced to nine months, and Golding [2007] 2 Cr App R (S) 309, where ten months was upheld, in each case consecutive to the existing sentence. The second category included cases where a criminal is aided in escape by confederates inside or outside prison, where sentences would be measured in years. An example is Coughtrey [1997] 2 Cr App R (S) 269, where four years’ imprisonment was appropriate in the case of a man serving life imprisonment for murder who escaped from prison after burning through a perimeter fence with cutting equipment and scaling the outer wall by means of a ladder. He was at large for a week.

19.	In Patmore v. R the Court of Appeal of England and Wales (Criminal Division) made the following observations with regard to the relevant factors to be considered in a case involving escape from lawful custody:

7.	In Purchase this court also observed:
" In this class of case there are a number of factors which the courts have considered over the years in assessing where in the scale of months a particular case should fit. Was there planning or was this an impulse? Was there violence or damage caused? What was the reason for the escape? Did the offender surrender or make arrangements to surrender before he was caught? How long was he at large? What else did he do while he was at large."

20.	It is evident from the agreed facts that the escape was not planned.  It was more opportunistic in nature.  No force or violence was used.  Property was not damaged.  The defendant did not engage in any other criminal activity while he was at large.  He was at large for 7 days and was arrested at Location.

21.	The offending in this matter falls into the category of offending which would attract lesser terms of sentences, that is, less than 1-year imprisonment.  In light of the defendant’s personal circumstances, aggravating and mitigating circumstances, and his moral culpability, the court finds that the objective seriousness of the offending for count 2 is also at the lower end of the level of seriousness.

RANGE OF SENTENCES

22.	Section 277 of the Crimes Act 2016 provides for the types of sentences that this court can impose on a person found guilty of an offence:

277 Kinds of sentences
Where a court finds a person guilty of an offence, it may, subject to any particular provision relating to the offence and subject to this Act, do any of the
following:
(a) record a conviction and order that the offender serve a term of imprisonment;
(b) with or without recording a conviction, order the offender to pay a fine; 
(c) record a conviction and order the discharge of the offender; 
(d) without recording a conviction, order the dismissal of the charge for the offence; or 
(e) impose any other sentence or make any order that is authorised by this or any other written law of Nauru.

	Count 1
23.	Prior to R v Beadan & Another, the sentencing range for offences involving possession of cannabis was a fine of $500 with a non-conviction to a fine of $1000 with a non-conviction. The cases forming this sentencing range were discussed in R v Beadan & Another, supra where this court indicated that there was a gradual increase in the sentences issued for offences involving possession of cannabis to address the growing prevalence of this offence.

24.	The sentence in R v Beadan & Another, supra is the current baseline of the yardstick that this court may refer to when sentencing individuals for offences involving possession of cannabis of a minimal amount.  When sentencing an offender under Section 6(a) of the Act the sentencing court must take into account that the Act requires a sentence for a term of imprisonment up to 10 years and a fine not exceeding $50,000 for cases involving unlawful possession of illicit drugs.  In appropriate cases the Criminal Justice Act 1999 would apply, in which case a community service order and/or a probation order may be made instead of a term of imprisonment.

Count 2

25.	The following are cases in which the defendant(s) were sentenced for escape from lawful custody:
i.	In Republic v Aliklik the Supreme Court sentenced the defendant to imprisonment for 1 month.  The defendant in that matter was a serving prisoner.  He tricked the prison officer into leaving his cell door open.  He escaped from the correctional center and returned after a few days.  

ii.	In Republic v Batsiua this court sentenced the defendant in that matter to imprisonment for 4 months. He was under arrest and escaped from police custody when police left him in the cell without locking the door and without anyone guarding the cell. 

iii.	In Republic v Bronson Notte & Foreman Roland this court sentence the defendants in that matter to 6 months imprisonment for escaping from the correctional centre. They were convicted prisoners who broke out of the old corrections centre to visit relatives and returned in the morning to the centre. They used a bar to cut open the fence.  

26.	In cases involving escape from lawful custody an immediate custodial sentence is made.

SENTENCING APPROACH AND PRINCIPLES

27.	Section 278 of the Crimes Act 2016 provides the following purposes for sentencing an offender:

278 Purposes of sentencing
The purposes for which a court may impose a sentence on an offender are as follows: 
(a) to ensure that the offender is adequately punished for the offence; 
(b) to prevent crime by deterring the offender and other people from committing similar offences; 
(c) to protect the community from the offender; 
(d) to promote the rehabilitation of the offender; 
(e) to make the offender accountable for the offender’s actions; 
(f) to denounce the conduct of the offender; and 
(g) to recognise the harm done to the victim and the community.

28.	Section 279 of the Crimes Act 2016 outlines the considerations that the court must take into account when sentencing a person found guilty of an offence.  The considerations under this section stems from Section 278 of the Crimes Act 2016.  

29.	Section 280 of the Crimes Act 2016 provides the sentencing considerations that must be taken into account when deciding whether a term of imprisonment is appropriate.

30.	Section 281 of the Crimes Act 2016 provides the considerations that the court must take into consideration as a far possible when deciding to impose a fine on a person found guilty of an offence.

31.	Hunt CJ at CL in the Court of Criminal Appeal of NSW in R v MacDonell stated that:

The sentencing procedures in the criminal justice system depend upon sentencers making findings as to what the relevant facts are, accepting the principles of law laid down by the Legislature and by the courts, and exercising a discretion as to what sentence should be imposed by applying those principles to the facts found. 

32.	Section 278 of the Crimes Act 2016 adopts the common law principles of sentencing as was found in Veen v The Queen (No 2) with reference to a similar sentencing provision in Australia.  In that case Mason CJ, Brennan, Dawson and Toohey JJ in their judgment in the High Court of Australia made useful observations with regard to the interaction between the different sentencing purposes:

… sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

33.	Further, the High Court of Australia in Muldrock v The Queen reconfirmed the common law heritage of the relevant provision:

The purposes there stated [in s 3A] are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law [Veen v The Queen (No 2) at 476–477]. There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them. [Relevant footnote references included in square brackets.]

34.	Having referred to the cases above on the application of the purposes for sentencing, the court emphasizes on how the principle of proportionality as a fundamental sentencing principle guides and binds the balancing exercise of a sentencer with regard to the various purposes of sentencing referred to in Section 278(b)(c)(d)(e)(f) & (g) of the Crimes Act 2016.  In this regard Howie J, with whom Grove and Barr JJ agreed, made the following observations in the Court of Criminal Appeal of NSW in R v Scott:

There is a fundamental and immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. This principle arose under the common law: R v Geddes (1936) SR (NSW) 554 and R v Dodd (1991) 57 A Crim R 349. It now finds statutory expression in the acknowledgment in s 3A of the Crimes (Sentencing Procedure) Act that one of the purposes of punishment is “to ensure that an offender is adequately punished”. The section also recognises that a further purpose of punishment is “to denounce the conduct of the offender”.

35.	An example of how the principle of proportionality operates is also found in Veen v The Queen (No 2), supra where the High Court of Australia held that a sentence should not be increased merely to protect the community from further offending by the offender if the result of which would be a disproportionate sentence.  In that case Mason CJ, Brennan, Dawson and Toohey JJ made the following useful observations at [473]:

It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.

36.	Lamer CJ in the Canadian Supreme Court in The Queen v CAM found that retribution in sentencing represents:

…an objective, reasoned and measured determination of an appropriate punishment which properly reflects the moral culpability of the offender, having regard to the intentional risk-taking of the offender, the consequential harm caused by the offender, and the normative character of the offender’s conduct.

37.	Howie J in the Court of Criminal Appeal of NSW in R v Zamagias made the following useful observations on the interaction of the various sentencing purposes and how the advancement of one purpose may achieve the goal of another:

It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation…

38.	In light of the above, the court finds that all of the purposes of sentencing would need to be considered and balanced against each other to reach a sentence which conforms with the fundamental sentencing principle of proportionality.   No one purpose has priority over the other.  The amount of weight that would be given to each purpose would depend on the circumstances of the offending, mitigating and aggravating factors, and the personal circumstances of the offender.

CONVICTED AS CHARGED?

39.	Section 190(4) of the Criminal Procedure Act 1972 provides as follows:

Where the Court has recorded a finding under this Section that an accused is guilty of the offence charged, it shall, after hearing him or her, or his or her legal practitioner if any, as to any mitigating circumstances and any evidence thereof which may be advanced, either convict him or her and pass sentence on, or make an order against, him or her in accordance with the law or, if authorised by any written law to do so, discharge him or her without proceeding to conviction.

40.	The defendant pleaded guilty to being found in unlawful possession of 2.3 grams of cannabis, and for escaping from lawful custody.  Therefore, the defendant is found guilty as charged.

41.	In the current circumstances, there are no facts that would justify discharging the defendant without proceeding to conviction.  Therefore, the defendant is also convicted as charged.

42.	The court would consider whether to enter a record of conviction or not later in this sentence ruling.

CONSIDERATION

43.	Having considered the various sentencing principles, the court will now consider the applicable factors and circumstances of this case and apply them to the sentencing principles.  In doing so the court has taken account of Section 279 of the Crimes Act 2016.  Further, the court has also taken into account the time spent in remand custody by the defendant.

Count 1
44.	The court takes into consideration that the offending did not cause any injury or harm.  No violence was involved.

45.	The court has taken note of the time spend in remand.  The defendant is not entitled to any reductions for time spend in remand.

46.	The court has considered Section 280 of the Crimes Act 2016.  In light of the objective seriousness of the offence and the early guilty plea of the defendant, the court finds that a term of imprisonment would not be an appropriate sentence for the defendant for count 1. 

47.	The court has considered Section 281 of the Crimes Act 2016.  Counsel for the defendant submitted that the defendant’s family would pay the fine, if any was ordered by this court.  The court notes that other factors may also be taken into account when determining the means of a person, that is, payment by a third party: see St Clare v. Wilson (1994) S.L.T. 564.

48.	In the current circumstances, there is no need for specific or personal deterrence.

Count 2
49.	The court also takes into consideration that the offending did not cause any injury or harm.  No violence was involved.

50.	The court has considered Section 280 of the Crimes Act 2016.  This court finds that an immediate custodial sentence is appropriate.  Escaping from lawful custody is a very serious type of offending and will not be dealt with lightly by this court.  It is essential that members of the public respect the criminal justice system.  If this court does not send a clear message to the members of the public that these types of offending is not acceptable then public may lose confidence in the criminal justice system.

SENTENCE

Count 1
51.	In applying the proportionality test, the court has considered the local circumstances in Nauru.  It is an undeniable fact that addiction to illicit drugs causes a lot of social and psychological issues, this court does not need to name them.  Unlike countries like the United Kingdom, Australia, New Zealand and even Fiji, Nauru does not have the same level of resources and facilities to deal with the social and psychological issues caused by addiction to illicit drugs.  This court finds that when determining what would be a proportionate sentence in a case involving unlawful possession of cannabis, it must take this fact into consideration, which in turn would require a sentence that would effectively provide general deterrence while at the same time not being excessively disproportionate.

52.	Section 6(a) of the Act requires a sentence for a term of imprisonment up to 10 years and a fine not exceeding $50,000.00.

53.	Sections 7(1), 8(1) and 11(1) of the Criminal Justice Act 1999 are relevant in relation to a probation order that would be made in the current circumstances.  Section 7(1) of the Criminal Justice Act 1999 provides that “where a person is convicted of an offence punishable by imprisonment the court may, instead of sentencing him or her to imprisonment, make a probation order releasing the person on probation for a period specified in the order, being a period of not less than 1 year nor more than 3 years”.  

54.	The term convicted has been interpreted by the courts flexibly.  In HA & SB v The Director of Public Prosecutions the Supreme Court of New South Wales made the followings observation at [9] of its judgment with regard to the interpretation of the term convict:

9 The words “convict” and “conviction” are not words of constant meaning with universal application. In Maxwell v The Queen (1996) 184 CLR 501 at 507, Dawson and McHugh JJ said:
“The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.”
and reference was made to Burgess v Boetefeur (1844) 7 Man & G 481 at 504, 135 ER 193 at 202, R v Tonks [1963] VR 121 at 127-8, R v Jerome and McMahon [1964] Qd R 595 at 604 and Richards v The Queen (1993) AC 217 at 226-7.

55.	Section 65 of the Interpretation Act 2011 defines “conviction” as “a finding of guilt by a court, whether or not the conviction is recorded”.  In the current context, the term “convicted” must be interpreted to mean “a finding of guilt by a court, whether or not conviction is recorded”.  This interpretation was adopted in the Supreme Court of Nauru in Republic v BR, Supreme Court Criminal Case No. 3 of 2024.  This court is bound by the Supreme Court’s interpretation in that matter.  Therefore, the Section 7(1) of Criminal Justice Act 1999 will apply in the current circumstances.

56.	Further, Section 22 of the Criminal Justice Act 1999 allows the court to make an order for community service against a person above the age of 13 who has been found guilty of an offence punishable by imprisonment.  Therefore, instead of making an order for a term of imprisonment, this court would make an order for community service and probation for count 1.

57.	Having considered all the relevant factors and circumstances in this matter, and the objective seriousness of the offending, this court finds that the appropriate sentence for the defendant for count 1 is an order for a fine in the sum of $1000, community service for 3 months, and probation for 1 year which is to commence upon the completion of the community service order.  The community service order is to commence once the defendant has served the term of imprisonment for count 2.

58.	Section 25 of the Criminal Justice Act 1999 provides for the content of a community service order. The court has considered Section 25 and makes orders accordingly.
Count 2
59.	In light of the objective seriousness of the offending in count 2, the starting point for a term of imprisonment for count 2 is 4 months imprisonment.  Upon considering the aggravating and mitigating factors in this case, the court reduces the term of imprisonment to 3 months.  The defendant is also entitled to 1/3 discount for his early guilty plea.  This leaves the defendant a term of imprisonment for 2 months effective from the date of this ruling.

RECORD OF CONVICTION

60.	The court has considered Section 277(a) & (b) of the Crimes Act 2016.  The defendant has not raised any grounds or facts upon which this court is able to exercise its discretion not to enter a record of conviction against him.  Therefore, this court enters a record of conviction against the defendant accordingly.

ORDERS

61.	The following are orders of this court:

1.	That a conviction is recorded against the defendant, namely, Rainer Dongobir.

Count 1
2.	That the defendant is to pay a fine of $1000 within 28 days from 6 August 2024.  If the defendant fails to pay the fine within 28 days then he shall be committed to a term of imprisonment for 6 months.  This terms of imprisonment shall be served consecutively with the term of imprisonment for count 2.

3.	That a community service order is made against the defendant in the following terms:

i.	The defendant is to carry out two hours of community service every Saturday on a weekly basis commencing from 12 October 2024 for a period of 3 months.  The community service is to commence once the term of imprisonment for count 2 has been served.

ii.	The defendant is to report to the Chief Probation Officer on 10 October 2024 at 11am.

iii.	The Chief Probation Officer shall give necessary directions on the community service to be undertaken.

4.	That a probation order is made against the defendant for a period of 1 year effective from the date of the expiration of the community service order.  The conditions of the probation order are as follows:

iv.	The defendant shall report in person to the Chief Probation Officer under whose supervision he is placed at a time provided by the Chief Probation Officer after the expiry of the community service order, and shall further report as and when he is required to do so by the Chief Probation Officer;

v.	The defendant shall reside at his current place of residence and give to the Chief Probation Officer reasonable notice of his intention to move from his current place of residence;

vi.	The defendant shall not reside at an address that is not approved by the Chief Probation Officer;

vii.	The defendant shall not continue in an employment, or continue to engage in an occupation that is not approved by the Chief Probation Officer;

viii.	The defendant shall not associate with a specified person, or with persons of a specified class, with whom the Chief Probation Officer has, in writing, warned him not to associate; and

ix.	The defendant shall keep the peace, be of good behavior and commit no offence against the law.

Count 2
5.	The defendant is to serve a term of imprisonment for 2 months with immediate effect.

6.	That the parties are at liberty to appeal the defendant’s sentence within 21 days from 6 August 2024.

Dated this 6 day of August 2024.

___________________________
Resident Magistrate
Vinay Sharma