Legal Research
Cases
Chifuntwe v Gardiner

Chifuntwe v Gardiner

Case [2012] ACTSC 136 15 August 2012

Type to search within this case.

KALONGA CHIFUNTWE v PETER DANIEL GARDINER
[2012] ACTSC 136 (15 August 2012)

APPEAL AND NEW TRIAL – In general and right of appeal – Appeal from Magistrates Court – Appeal against sentence – Appeal dismissed.

CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Culpable driving causing grievous bodily harm – Whether manifestly excessive – Not manifestly excessive.
CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Driving while suspended – Whether manifestly excessive – Not manifestly excessive.
CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Whether common elements of multiple offences punished twice.

Bail Act 1992 (ACT), s 56A(2)
Crimes Act 1900 (ACT), s 29
Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP
Crimes (Sentencing) Act 2005 (ACT), ss 7, 66
Magistrates Court Act 1930 (ACT), s 216, div 3.10.2, pt 3.10
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19, 26
Road Transport (Driver Licensing) Act 1999 (ACT), s 32(2)(a)
Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 5B(2)

Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 109

Apolevski v Kinnane [2010] ACTSC 43
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Elson v Ayton (2010) 241 FLR 178
GDP (1991) 53 A Crim R 112
Griffiths v The Queen (1977) 137 CLR 293
Hawkins v Hawkins (2009) 3 ACTLR 210
JA v Macdonald [2011] ACTSC 22
Kennewell v Rand [2006] ACTCA 10
Kien v The Queen [2012] ACTCA 25
Ledson v Taylor (2010) 239 FLR 184
MacIntyre (1988) 38 A Crim R 135
Morley (1984) 13 A Crim R 431
Pearce v The Queen (1998) 194 CLR 610
R v Alzaabi (Unreported, Supreme Court of the ACT, Higgins CJ, 12 September 2008)
R v Calvert [2010] ACTSC 80
R v Campbell [2010] ACTCA 20
R v Creighton [2011] ACTCA 13
R v Debrueys [2011] ACTSC 178
R v De Simoni (1981) 147 CLR 383
R v Harper [1980] Tas R 16
R v Holder [1983] 3 NSWLR 245
R v Jurisic (1998) 45 NSWLR 209
R v Kurzynski [2001] ACTSC 90
R v Leach (2003) 85 SASR 139
R v Moffat (Unreported, Supreme Court of the ACT, Penfold J, 12 June 2008)

R v Norris (Unreported, Supreme Court of NSW Court of Criminal Appeal, Enderby, McInerney and Badgery-Parker JJ, 13 October 1989)

R v Overhall (Unreported, Supreme Court of the ACT, Crispin J, 19 June 2006)
R v PM [2009] ACTSC 24
R v Slattery (1996) 90 A Crim R 519
R v TW (2011) 6 ACTLR 18
R v Williscroft [1975] VR 292
Tricklebank (1993) 69 A Crim R 351

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 19 of 2012

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 15 August 2012

IN THE SUPREME COURT OF THE       )
  )          No. SCA 19 of 2012
AUSTRALIAN CAPITAL TERRITORY    )

KALONGA CHIFUNTWE

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chifuntwe v Gardiner

Details

AGLC: Chifuntwe v Gardiner [2012] ACTSC 136
Case: [2012] ACTSC 136
Decision Date: 15 August 2012

CaseChat Overview and Summary

In the case of Chifuntwe v Gardiner, the appellant, Chifuntwe, sought an appeal against the sentence imposed by the Magistrates Court, contending that it was manifestly excessive. The sentencing followed convictions for culpable driving causing grievous bodily harm and for driving while the licence was suspended. The District Court was tasked with determining whether the sentence was indeed manifestly excessive and if the court had inadvertently punished the common elements of the multiple offences twice.

The primary legal issues before the court were the assessment of the sentence's proportionality and whether the common elements of the offences had been double-counted. The court had to review the sentencing principles and the structure of the sentence to ensure that it was neither manifestly excessive nor that it improperly duplicated penalties for overlapping aspects of the charges.

The court found that the sentence imposed was not manifestly excessive. It concluded that the Magistrates Court had appropriately considered the circumstances of the case, including the nature of the offences and the appellant's background. The court also determined that the common elements of the multiple offences had not been punished twice. The sentencing structure was deemed appropriate, taking into account all relevant factors, including the cumulative impact of the offences.

The appeal was dismissed, and the original sentence imposed by the Magistrates Court was upheld. The court found no merit in the contention that the sentence was manifestly excessive or that there was a duplication in the punishment of the common elements of the offences. The District Court's decision was final on these points, and no further appeal was permitted.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Chifuntwe v Gardiner [2012] ACTSC 136

Most Recent Citation

Dusica Moromilov v Sreta Dragicevic [2013] ACTSC 91

Cases citing this decision · 3 of 3 shown

Amy Slaviero v Joshua Nabytowiccz-Cannizzaro
[2021] ACTMC 11 Para 1

…However in Chifuntwe v Gardiner [2012] ACTSC 136, an appeal from this court, Refshauge ACJ, as he then was, made the following observations at [93-96]:…
R v Guy
[2018] ACTSC 270

…Chifuntwe v Gardiner [2012] ACTSC 136 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 R v Barton [2016] ACTSC 162; 77 MVR 97 R v Richardson [2016] ACTSC 133…
Dusica Moromilov v Sreta Dragicevic
[2013] ACTSC 91 Para 1

…with the issue raised by him or her. This must, of course, be limited so as not to be unfair to the other party. As I put it in Chifuntwe v Gardiner [2012] ACTSC 136 at [68]:…

View all 3 citing cases →

Cases cited in this decision · 20 of 20 shown

R v Holder
[2019] SASCFC 73 Para 1

…hile, of course, that is a decision in a particular case, it is a decision of the Court of Appeal which has, as Street CJ put it in R v Holder [1983] 3 NSWLR 245 at 253, “the responsibility for the appellate jurisdiction over sentencing policy and practice by first instance courts in the matter of indictable c…
Kien v The Queen
[2012] ACTCA 25 Para 1

…manifest inadequacy) is brought. See R v Campbell [2010] ACTCA 20 at [32]–[35], approved in R v TW (2011) 6 ACTLR 18 at 27; [60]; Kien v The Queen [2012] ACTCA 25 at [27]. See also Hawkins v Hawkins (2009) 3 ACTLR 210 at 218–21; [39]–[54].…
R v Brett Anthony Debrueys
[2011] ACTSC 178 Para 1

…o the parties as explained in Elson v Ayton (2010) 241 FLR 178 at 192–4; [81]–[93]. See, for example, R v Calvert [2010] ACTSC 80; R v Debrueys [2011] ACTSC 178.…
R v Creighton
[2011] ACTCA 13 Para 1

…In R v Creighton [2011] ACTCA 13, the Court of Appeal considered that the sentence I had imposed was within a proper sentencing range and not so inadequate to require the Court to intervene by that it was a light sentence. Indeed, Gray P and Lander J commented (at [51]), that “the members of this Court all might h…
JA v LYNDALL Macdonald and Morgwn Saunders
[2011] ACTSC 22 Para 1

…I note, too, that, more recently, Teague AJ in JA v Macdonald [2011] ACTSC 22 dismissed an appeal against the severity of a sentence which included a sentence of 18 months imprisonment for a charge of culpable driving causing grievous bodily harm, despite the offender being a young person under the age of 18 years…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.…
R v Calvert
[2010] ACTSC 80 Para 1

…n open Court on notification to the parties as explained in Elson v Ayton (2010) 241 FLR 178 at 192–4; [81]–[93]. See, for example, R v Calvert [2010] ACTSC 80; R v Debrueys [2011] ACTSC 178.…
Elson v Ayton
[2010] ACTSC 70 Para 1

…in his Honour’s articulation of the sentence should have been corrected in open Court on notification to the parties as explained in Elson v Ayton (2010) 241 FLR 178 at 192–4; [81]–[93]. See, for example, R v Calvert [2010] ACTSC 80; R v Debrueys [2011] ACTSC 178.…
Apolevski v Kinnane
[2010] ACTSC 43 Para 1

…In Apolevski v Kinnane [2010] ACTSC 43, I upheld an appeal against a sentence of four months for driving whilst disqualified by re-imposing that sentence but suspending portion of it. The appellant there had a history of traffic offences.…
Ledson v Taylor
[2010] ACTSC 42 Para 1

…ght to drive, remains. I held that a sentence of imprisonment was the appropriate sentence for contumacious offending in this way. In Ledson v Taylor (2010) 239 FLR 184 at 193–4; [69]–[75], I considered the two offences and concluded (at [75]) that the argument “that a lesser penalty should be imposed because the sus…
Hawkins v Hawkins
[2009] ACTSC 148 Para 1

…See R v Campbell [2010] ACTCA 20 at [32]–[35], approved in R v TW (2011) 6 ACTLR 18 at 27; [60]; Kien v The Queen [2012] ACTCA 25 at [27]. See also Hawkins v Hawkins (2009) 3 ACTLR 210 at 218–21; [39]–[54].…
R v PM
[2009] ACTSC 24 Para 1

…at courts take to such offenders. Those principles have been set out in GDP (1991) 53 A Crim R 112 at 116, in a passage to which I referred in R v PM [2009] ACTSC 24 at [53]. Nevertheless, as the Court of Appeal decided in Kennewell v Rand , they do not outweigh the need for deterrent sentences in cases of this ki…
R v Guthrie
[2008] NZCA 439

…uality of his driving, charged as driving in a manner dangerous to the public is to be judged. See, for example, Reg v McBride [1962] 2 QB 167; and Reg v Guthrie (1981) 52 FLR 171. De Simoni and other cases of that kind are not concerned with the same question. They establish the principle that it is not permissible in…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…I considered the sentencing of offenders for driving whilst disqualified in Cotter v Corvisy (2008) 1 ACTLR 299. This is a somewhat different offence, though the principal vice, namely driving whilst his previous driving had justified removing his right to drive, remains. I held that a sentence of imprisonment was the app…
Kennewell v Rand
[2006] ACTCA 10 Para 1

…In Kennewell v Rand [2006] ACTCA 10, the Court had to consider two questions. The first was whether two sentences of imprisonment of 18 months each imposed in respect of one of the two victims should have been served concurrently or partly cumulatively. The Court held that they should have been served concurrently…
The Queen v John Joseph Kurzynski
[2001] ACTSC 90 Para 1

…In R v Kurzynski [2001] ACTSC 90, Higgins J (as his Honour then was), referred to the Guideline Judgment of the NSW Court of Criminal Appeal, namely R v Jurisic (1998) 45 NSWLR 209, as relevant to the sentencing decisions of this Territory. His Honour followed that decision by imposing a sentence of five years imp…
Pearce v The Queen
[1998] HCA 57

…nd [2006] ACTCA 10 Kien v The Queen [2012] ACTCA 25 Ledson v Taylor (2010) 239 FLR 184 MacIntyre (1988) 38 A Crim R 135 Morley (1984) 13 A Crim R 431 Pearce v The Queen (1998) 194 CLR 610 R v Alzaabi (Unreported, Supreme Court of the ACT, Higgins CJ, 12 September 2008) R v Calvert [2010] ACTSC 80 R v Campbell [2010] ACTCA 2…
R v De Simoni
[1981] HCA 31 Para 1

…ken into account for the sentencing for the charge of culpable driving causing grievous bodily harm because of the principle set out in R v De Simoni (1981) 147 CLR 383.…
Griffiths v The Queen
[1977] HCA 44 Para 1

…Street CJ further referred to what was said by Jacobs J in Griffiths v The Queen (1977) 137 CLR 293 at 326:…
[1962] 2 QB 167
[1962] 2 QB 167

…s against which the quality of his driving, charged as driving in a manner dangerous to the public is to be judged. See, for example, Reg v McBride [1962] 2 QB 167; and Reg v Guthrie (1981) 52 FLR 171. De Simoni and other cases of that kind are not concerned with the same question. They establish the principle tha…

Legislation cited in this decision · 8

Crimes (Sentencing) Act 2005 (ACT)
66, 7 5 mentions (from Para 1)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
19, 26 3 mentions (from Para 1)
Bail Act 1992 (ACT)
56A(2) 2 mentions
Crimes Act 1900 (ACT)
29 2 mentions
Magistrates Court Act 1930 (ACT)
216 2 mentions (from Para 1)
Road Transport (Driver Licensing) Act 1999 (ACT)
32(2)(a) 2 mentions
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
5B(2) 2 mentions
Crimes (Sentence Administration) Act 2005 (ACT)
116ZP 1 mention