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Police v Chong Nee [2007] WSSC 102 (19 October 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINU'U

BETWEEN:

POLICE
Prosecution

AND:

ROBERT NEWMAN CHONG NEE

of Aleisa and Faleasiu
Accused

Counsel: L Taimalelagi for prosecution
T Atoa for accused

Sentence: 19 October 2010

SENTENCE BY SAPOLU CJ

Introduction

1. The accused Robert Chong Nee is a 28 year old male from Aleisa and Faleasiu. He is appearing for sentence on the charges of robbery which carries a maximum penalty of 10 years imprisonment and of being armed with a dangerous weapon which carries a maximum penalty of 12 months imprisonment. On 12 July, the accused pleaded not guilty to the charges against him but on 30 September he changed his plea to one of guilty. So the accused did not plead guilty at the first reasonable opportunity.
   
2. The accused has been jointly charged with robbery with three co-accused, namely, Shane Chang Tong who has passed away, Faiga Victor Tanielu who has pleaded not guilty and whose trial is presently part heard pending this sentence, and Nazario Chong Nee the accused's young brother who had pleaded guilty at the first reasonable opportunity and was sentenced to 6 years imprisonment on 30 July.
   
3. The reason why the accused is sentenced today is because the prosecution wanted to call him as a witness at the trial of the co-accused Faiga Victor Tanielu which has already started. I indicated to counsel for the prosecution that the accused has to be sentenced first on his guilty plea before the prosecution may call him as a witness at the trial of Faiga Victor Tanielu. As a result, that trial has been adjourned part heard for the present accused to be sentenced first.
   
4. Section 16 of the Evidence Ordinance 1960 provides in effect that where an accused is jointly charged with an offence with a co-accused, that accused is a competent and compellable witness for the prosecution against the co-accused if the accused has pleaded guilty to the offence. However, it has been the practice of this Court that before the prosecution calls an accused who has pleaded guilty to an offence as a witness at the trial of a co-accused, the accused has to be sentenced first on his guilty plea. This is also the practice in New Zealand where an accused who has pleaded guilty to an offence is to be called as a witness for the prosecution at the trial of a co-accused: see R v Currie [1968] NZPoliceLawRp 14; [1969] NZLR 193, 210
   

The offending

5. The facts of the present offending have already been set out in my decision in Police v Nazario Chong Nee (sentence passed on 30 July 2010). So the facts of the offending set out here will be substantially a repetition of what has already been set out in that decision. In doing so, I do bear in mind that the trial of the accused Faiga Victor Tanielu is still part heard on his not guilty plea. Therefore, what is said here about the facts of the offending is strictly for the purpose of passing sentence on the present accused. It is not intended to reflect on the innocence or otherwise of the co-accused Faiga Victor Tanielu.
   
6. As it appears from the prosecution's summary of facts, on Thursday morning 8 April 2010 at about 8:30am, the accused and his three co-accused made their way to the branch of the Westpac Bank ("the bank") at Vaitele in a white taxi vehicle driven by the co-accused Shane Chan Tong ("Shane"). They stopped at an isolated area to remove the number plates, the tyre rims and the taxi sign of the vehicle. All four men then put on long-sleeve shirts, long pants, and covered their faces with t-shirts to resemble a ninja look.
   
7. Upon arrival at the bank, the accused and two of his co-accused entered the bank while the co-accused Shane waited in the vehicle which was parked outside the bank. Obviously, the vehicle was intended to be used as a getaway vehicle for the four men after the robbery. The accused was the first to enter the bank armed with a pistol which he told the probation service was a fake gun. He was then followed by the co-accused who was not carrying any weapon and then by the co-accused who was carrying a machete.
   
8. At that time, there were four bank employees inside the bank and one customer. Three of the employees were behind the counter and one of them was serving the customer. The fourth employee was loading money cassettes into the ATM machine. The accused pointed the pistol at the fourth employee and demanded her to hand over the money. Meanwhile, the two co-accused who were with him were threatening the other bank employees and grabbing money from behind the counter and loaded this into a backpack.
   
9. The accused and one of his two co-accused then ran out of the bank, jumped into the getaway vehicle and fled the scene. Meanwhile, the other co-accused was left behind inside the bank.
   
10. The three men in the vehicle travelled to a house at Tapatapao where they divided the money in equal shares amongst the four of them including the co-accused who had been left behind inside the bank. The present accused received about $57,863.50. He put this money in the backpack which he carried around with him until he was apprehended by the police. He said he had spent only $100 before the police apprehended him.
    
11. The total amount estimated to have been stolen from the bank by the accused and his co-accused is $227,605. Only $78,000 has been recovered.
    

The accused

12. The accused migrated with his parents and siblings to New Zealand when he was 6 years old. His previous convictions in New Zealand, as shown from his pre-sentence report, date back to when he was 14 years old. At the age of 17 years he was sentenced to prison. He was deported back to Samoa in 2006. His brother Nazario Chong Nee who has already been sentenced was deported back to Samoa in 2004. In 2007, the accused was convicted before the Samoa District Court of burglary and theft and was fined $200.
    
13. The accused expressed remorse but I am somewhat skeptical whether he is truly remorseful given his previous record and the fact that he initially pleaded not guilty on 12 July to the charges against him until 30 September when he changed his plea to guilty after a lengthy discussion with his counsel. However, I accept that the accused had shown co-operation with the police. He readily confessed his participation in the commission of the robbery when he was interviewed by the police. He has also agreed to give evidence for the prosecution in the trial of the co-accused Faiga Victor Tanielu.
    
14. The accused, through his counsel, has also said that the planning and preparation of this robbery was done by the co-accused Shane. He also says that the vehicle, weapons and clothing that were used in the robbery were all supplied by Shane. As already mentioned, Shane has unexpectedly passed away. He therefore cannot respond to what is being said against him. But whether what the accused is now saying is true or not, it is evident that he was a willing and active participant in the commission of the robbery and he took an equal share of the money that was stolen from the bank.
    

Aggravating factors

15. There are several aggravating factors in this offending which not only increase its overall gravity but the accused's individual culpability. This is a case of an armed robbery of a bank. In fact it is the first of its kind in this country. This is not a case of robbery of an individual or a private home. It is the armed robbery of a bank. It is evident that the motive of the accused and his co-accused in targeting the bank was the potential gain that will ensue. This is a relevant factor in assessing the gravity of the present offending and the individual culpability of the accused. The other aggravating factors as far as they concern the present accused are: (a) the accused and his two co-accused who committed the actual robbery were disguised in a way to give them a ninja look thus increasing the degree of fear and intimidation upon their immediate victims who were the four bank employees present and the customer who was being served at the counter; (b) the use of weapons, namely, a pistol (though a fake gun) and a machete also had the same effect on the immediate victims and undoubtedly was intended to make the bank employees comply with the demands by the accused and his co-accused: (c) the great trauma and distress to the immediate victims; (d) the consequential feelings of insecurity and loss of confidence not only to the immediate victims but to other employees of the bank who have to work at front counters; and (e) the very large amount of money that was stolen which is a significant loss to the bank.
    
16. Another possible aggravating factor in the case of a gang armed bank robbery is the involvement of more than one person all acting together for an unlawful common purpose. It is likely to be less frightening and less formidable to be confronted by only one robber than to be confronted at the same time by several robbers.
    
17. Participation in the planning and preparation of a robbery is also an aggravating factor. However, the accused says that the planning of this robbery was done by the co-accused Shane who also provided the vehicle, weapons, and clothing that were used. Whether that is true or not, the accused was evidently a willing and active participant in the execution of the plan to rob the bank and he also willingly accepted an equal share of the money that was stolen from the bank.
    
18. The accused also has previous convictions while he was in New Zealand and has convictions for burglary and theft in 2007 after he returned to Samoa.
    

Mitigating factors

19. The only mitigating factors in this case are (a) the accused's plea of guilty though delayed, and (b) his co-operation with the police particularly his willingness to give evidence for the police in the trial of the co-accused Faiga Victor Tanielu.
    

The decision

20. It is most unfortunate that armed robbery of a bank, which is something we only see on TV up to now, has finally occurred in this country. It is the type of offending that is condemned in any society.
    
21. I will therefore give priority to the punitive and deterrent aspects of sentencing in setting a starting point for sentence in this case. A punitive sentence that should reflect society's condemnation and denunciation of this type of offending and a deterrent sentence to deter others from being tempted to engage in similar conduct.
    
22. As it was said by Baragwanath J in R v Cassidy [2003] NZCA 245 at para (7) in delivering the judgment of the New Zealand Court of Appeal in that case:
    

"In the case of bank robbery the temptation of easy money, the vulnerability of bank staff and the immediacy of the trauma to which they and members of the public are exposed normally requires a policy of stern deterrence entailing imprisonment"

23. At the same time, I also have to bear in mind two other considerations. The first is the maximum penalty prescribed for robbery which is 10 years imprisonment. The second is consistency in sentencing. As earlier mentioned, the co-accused Nazario Chong Nee has already been sentenced to 6 years imprisonment on his guilty plea. There would need to be a significant factor to justify a differention in sentence between this accused and the co-accused Nazario Chong Nee. I do not see such a significant factor.
    
24. Bearing in mind the above considerations, and having regard to the aggravating and mitigating factors relating to the offending, I will set a starting point of 7 years for sentencing. I will deduct 15 months for the mitigating factors relating to the accused, namely, his guilty plea and co-operation with the police. That leaves 5 years and 9 months. I will add on 3 months for the one aggravating factor relating to the accused, namely, his previous convictions. That results in 6 years.
    
25. The accused is sentenced to 6 years imprisonment on the charge of robbery. On the charge of being armed with a dangerous weapon which arose out of the same facts as the robbery charge, the accused is sentenced to 6 months imprisonment. Both sentences to be concurrent. The period of time for which the accused has been remanded in custody is to be deducted from his sentence.
    
26. Finally, the accused applied to the Court for his sentence to be served at Vaiaata prison in Savaii. That is matter for the accused or his counsel to take up with the prison authorities.
    

CHIEF JUSTICE

Solicitor
Attorney General's Office, Apia for prosecution
Atoa Law Firm for accused