Director of Public Prosecutions v Chifuntwe
[2024] ACTSC 359
•13 November 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Chifuntwe |
Citation: | [2024] ACTSC 359 |
Hearing Date: | 29 October 2024 |
Decision Date: | 13 November 2024 |
Before: | Christensen AJ |
Decision: | See [67] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence –aggravated dangerous driving and driving whilst disqualified as a repeat offender – breach of suspended sentence – failing to stop for police – peculiar nature and circumstances of the offending –history of drug dependency and substance abuse – deterrence and denunciation of conduct – elevated significance of community protection – sentence of imprisonment imposed |
Legislation Cited: | Criminal Code 2002 (ACT) s 318 |
Cases Cited: | DPP v Clarke (No 2) [2023] ACTSC 261 |
Parties: | Director of Public Prosecutions ( Crown) Kalonga Chifuntwe ( Offender) |
Representation: | Counsel M Lucero ( Crown) J Sabharwal ( Offender) |
| Solicitors ACT Director of Public Prosecutions Peter Agoth & Associates ( Offender) | |
File Numbers: | SCC 284, 285 of 2023; 245, 246 of 2024 |
CHRISTENSEN AJ:
Introduction
1․The offender, Kalonga Chifuntwe, is to be sentenced for two series of driving offences:
Series 1 – 26 March 2022 offending
(a)Drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT), carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both (CAN 2022/6463); and
(b)Driving whilst disqualified as a repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), carrying a maximum penalty of 12 months imprisonment, 50 penalty units, or both. This offence also carries an automatic licence disqualification of 24 months (CAN 2022/6462).
Series 2 – 31 May 2024 offending
(a)Aggravated dangerous driving as a repeat offender, contrary to s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), carrying a maximum penalty of 5 years imprisonment, 500 penalty units, or both. This offence also carries an automatic license disqualification of 12 months (CAN 2024/5827); and
(b)Driving whilst disqualified as a repeat offender, contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and carrying a maximum penalty of 12 months imprisonment, 50 penalty units or both. This offence also carries an automatic licence disqualification of 24 months (CAN 2024/6288).
2․As the charges show, Mr Chifuntwe is a recidivist offender in respect to driving offences. The extent to which he is a recidivist offender is also established by his previous offending behaviour. This includes having been previously convicted for failing to stop for police, and for disqualified driving. His most recent conviction for driving offences resulted in a suspended term of imprisonment, which he has breached by this offending. This breach is also to be considered in the sentencing exercise.
Series 1 offending – 26 March 2022
3․On Saturday 26 March 2022 at about 7:50am, Mr Chifuntwe drove a blue Subaru WRX into the public carpark at the Tuggeranong police station. He approached police and asked if the vehicle was stolen.
4․The vehicle had no registration plates, and Mr Chifuntwe had no keys for the vehicle. He was using a screwdriver to start it. Mr Chifuntwe told the police that he had been driving around in the vehicle with his dog.
5․He said to police that the vehicle “may be stolen” and asked that the police “run some checks”. Police asked him why he thought the vehicle may be stolen, and Mr Chifuntwe could not give an answer to this. He said:
[T]hat’s why I came to the station to talk about it all. I came in and told you I had a stolen car. I also turned around and asked to let the petrol station know when I had to fill up that it was a stolen car.
6․The initial checks by ACT Police did not return a report that the vehicle was stolen. Mr Chifuntwe was informed of this.
7․Police then spoke to him about the status of his licence. He was advised by police that he was not the holder of a current driver’s licence and did not hold the right to drive in the Australian Capital Territory (ACT). Mr Chifuntwe was told he could not drive the vehicle, and a short time later left the police station in the blue Subaru with his father.
8․Subsequent enquiries ascertained that the vehicle had been stolen from an address in Crestwood, New South Wales (NSW) at about 11:20pm on Sunday, 20 March 2022. The vehicle was reported stolen by the owner shortly afterwards to the NSW Police.
9․ACT Police then attended at Mr Chifuntwe’s residence to seize the blue Subaru.
10․The nature and circumstances of this offending is peculiar. Nonetheless, it can be assessed with reference to the matters that typically inform offending of this type, to the extent that the relevant matters are known.
11․The period of time that the offender was driving the stolen vehicle is not clear. At its highest, it is that Mr Chifuntwe had been “driving around in it” with his dog. The vehicle had been stolen on 20 March 2022, and was recovered by the police on the day the offending was detected. Any period that the offender was driving the vehicle was time that the owner was deprived of it. The absence of a vehicle, of any value, for any period, will have caused distress, frustration, inconvenience, and financial implications to the owner.
12․The nature of the offender’s driving was not of concern, nor can the driving of the vehicle itself be attributed to Mr Chifuntwe causing any damage to the vehicle.
13․In assessing the offender’s moral culpability for this offence, it is of significance that he drove the vehicle to the police station and sought assistance from the police as to whether the vehicle was stolen. It clearly was, given the mechanism of ignition. It is apparent though that Mr Chifuntwe was, unusually, seeking to confirm this. In doing so, he willingly exposed himself to police attention in respect to the vehicle.
14․The offender’s moral culpability in respect to the charge of driving while disqualified is much higher. This was a deliberate decision to drive in circumstances where Mr Chifuntwe knew that he should not have been driving. He had been disqualified from driving by a court from August 2020 and again from October 2021, with both periods of disqualification in place at the time of this offending. This decision to drive while disqualified involved driving the stolen motor vehicle. Again though, he willingly exposed himself to police attention in respect to his driving.
15․The decision made by Mr Chifuntwe to drive the vehicle to the police station in the circumstances is difficult to understand. It demonstrates both a complete disregard and defiance of the law, while also a level of intention to comply with the law.
16․It is plain that terms of imprisonment are the only appropriate sentences, although the totality principle is applicable given the inextricably linked nature of the offending. In applying the totality principle in the sentencing exercise, it is also relevant that between the offending that occurred in series one and two, Mr Chifuntwe was sentenced to a term of imprisonment for another matter.
Series 2 offending – 31 May 2024
17․The next offending the subject of the current sentencing exercise was more than two years after the series one offending.
18․On 31 May 2024 at approximately 3:40am, police observed a vehicle, later determined to be driven by Mr Chifuntwe, to be travelling at excessive speed on Parkes Way, Acton. Police followed the vehicle. It was being driven in an erratic manner.
19․Mr Chifuntwe turned off Parkes Way and travelled through Civic. Police formed the view that the driver was unable to maintain control of the vehicle as it was swerving to remain in the lanes. It was consistently travelling at speeds in excess of the speed limit.
20․The vehicle continued travelling at an excessive speed on Barry Drive, towards Belconnen. Mr Chifuntwe then turned towards the Tuggeranong Parkway. Police, who were travelling at the posted speed limit, were unable to maintain sight of the vehicle.
21․Additional police travelled to a location on the Parkway and deployed a tyre deflation device. Mr Chifuntwe travelled over the device and continued driving. Police continued to follow, activating emergency lights and travelling directly behind the vehicle. Mr Chifuntwe continued to drive south, driving in the middle of the two lanes on the Parkway.
22․An object was thrown from the passenger side of the vehicle, landing on the roadway directly in front of the police. The police vehicle drove over the item, hearing a metallic sound. A soft drink cup was then thrown from the passenger side of the vehicle.
23․The tyres of the vehicle continued to deflate, and the vehicle was moving around on the road. It was travelling at approximately 80 km/h in a 100 km/h area.
24․Mr Chifuntwe drove the vehicle onto the Hindmarsh Drive exit ramp, travelling in the middle of the roadway. He entered the intersection against a red traffic light, crossing three lanes of traffic and almost colliding with a guard rail. Police observed at this time that there were two occupants in the vehicle.
25․The vehicle continued east on Hindmarsh Drive, with police following. Mr Chifuntwe mounted the centre median strip and continued across it, before returning to the road and continuing to travel east in the westbound lanes. Traffic travelling west in the westbound lanes was required to slow down and move to the side of the road to avoid a collision.
26․Mr Chifuntwe continued to travel on the wrong side of the road, at speeds of approximately 40 to 60 km/h. Sparks were coming from the vehicle and the front tyres had disintegrated. The vehicle continued to swerve back and forth between lanes as it approached an intersection.
27․Mr Chifuntwe attempted to turn right onto Athllon Drive. In doing so, the vehicle mounted the pedestrian island between the intersection and slip lane, and continued through the slip lane and onto the green belt on the south side of Hindmarsh Drive.
28․The vehicle continued through the greenbelt in an easterly direction, towards a storm water drain. As the vehicle approached the drain, the driver’s side door opened, and Mr Chifuntwe got out as the vehicle was moving.
29․The vehicle continued travelling forward and crashed into the stormwater drain, which was full of water at the time. He attempted to leave the scene by jumping into the drain and trying to climb out the other side. However, he was apprehended by police. The passenger was also located, with no information to suggest he was injured in the collision.
30․The prosecution assisted with the authority of DPP v Clarke (No 2) [2023] ACTSC 261 at [38] (Clarke (No 2)) as to the factors that inform the assessment of an offence of this type. I have had regard to those matters. The decision of Clarke (No 2) is also informative in considering current sentencing practice for this offence. In Clarke (No 2) a sentence of 12 months imprisonment was indicated prior to the reduction for the plea of guilty, in a total effective period of 33 months imprisonment, to be served by way of an intensive correction order. The offending there had some similar features to the driving that occurred here, but that offender had more compelling subjective circumstances and prospects of rehabilitation.
31․This driving by Mr Chifuntwe is a very serious example of this form of offence. It involves many of the forms of dangerous driving that such an offence can involve – speed, swerving, travelling outside of the lanes, travelling on the wrong side of the road, travelling through a red light, driving on a median strip, driving on a pedestrian island, driving on a green belt, and a collision. It was driving for a lengthy period, on different types of roads. It also involved failing to stop for police, providing for the increased maximum penalty.
32․The failure to stop for police is a blatant and very deliberate example of this conduct. Mr Chifuntwe continued to drive the vehicle with deflated tyres, while police were directly behind him. Not insignificant police resources were involved in the pursuit. The dangerous driving conduct included throwing items from the vehicle, inferentially, as an attempt to dissuade police from the pursuit. This heightens the already significant risk that the police were already exposed to. Risk was also caused to a passenger, and to other road users. Fortunately, the time of day of the offending limited the number of road users exposed to that risk, although there were still road users who had to take preventative action to avoid a collision.
33․In addition to once again driving while disqualified, with the inherent risks and defiance of a court order that this involves, Mr Chifuntwe was at the time of the offending:
(a)a repeat offender by virtue of a previous conviction for driving with a prescribed drug in his oral fluid;
(b)on bail for the series one offending;
(c)subject to a suspended sentence order that was imposed on 14 November 2023; and
(d)subject to a good behaviour order that was imposed on 14 November 2023.
Breach
34․The sentences of 14 November 2023 were imposed by the Magistrates Court for offences of driving with a prescribed drug in his oral fluid (CAN 2022/4836) and two offences of driving while disqualified (CAN 2022/4835, CAN 2022/6621). For two of the offences, the sentence imposed was one of three months’ imprisonment, suspended with a good behaviour order for 18 months. The sentence for one of the offences was a good behaviour order pursuant to s 13 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) for a period of 18 months. Further, at the time the sentences were imposed, Mr Chifuntwe was also convicted and sentenced to a period of three months’ imprisonment for a drive while disqualified offence. That sentence has been served.
35․It follows that Mr Chiftunwe is to be dealt for the breaches of the suspended sentences and the good behaviour order.
36․As to the suspended sentences, the breach occurred within three months of release from custody and was for similar offending. The only appropriate response to give effect to there being consequences for such a serious breach is to impose the suspended term of three months’ imprisonment: s 110(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act). In accordance with the original sentence orders, these are to be served concurrently.
37․As to the breach of the good behaviour order, this was for an offence of driving while disqualified. That order commenced from the date of sentence, such that Mr Chifuntwe breached it approximately one third of the way through. The original offending occurred in the early hours of 29 April 2022, with the manner of driving leading to police pulling over Mr Chifuntwe and his passenger. He informed police that he had been issued a paper license in NSW, but that it had been taken by a police officer. This was clearly incorrect, with Mr Chifuntwe’s driving at that time in contravention of both ACT and NSW disqualification orders.
38․Section 108 of the Sentence Administration Act provides the Court’s discretionary powers upon such a breach. Having regard to the circumstances of the breach, the only appropriate order is one of cancellation and re-sentence: ss 108(1)(f), 108(3)(b). In determining the appropriate sentence, it is relevant to note that the offending was a serious example of disqualified driving. The only appropriate sentence, to reflect deterrence and denunciation of the conduct, is one of imprisonment. The information provided to the Court does not extend to whether there was a plea of guilty and the timing of this. In the absence of this information and any submissions contrary to such an approach, I will afford Mr Chifuntwe a reduction in the sentence of 25 per cent on a basis that there was a plea of guilty of utilitarian value.
Criminal history
39․The need to reflect deterrence and denunciation in all of the sentences to be imposed is also borne out with reference to Mr Chifuntwe’s criminal history.
40․On four previous occasions, in both the ACT and NSW, he has been disqualified from holding or obtaining a driver licence for varying periods, the imposition dates and periods being from:
(a)26 September 2018 for two years, in effect from 11 August 2019;
(b)20 August 2020 for two years, in effect from 11 August 2021;
(c)13 October 2021 for 681 days, in effect from 13 October 2021 (until 24 August 2023), and
(d)14 November 2023 for 4 years, in effect from 20 August 2025 (until 19 August 2029).
41․The driving in the first series occurred some five months after the imposition of the disqualification period imposed by the Queanbeyan Magistrates Court. The driving in the second series occurred, as considered above in respect to the breach, some six months after the sentencing for offences including disqualified driving.
42․In total, Mr Chifuntwe has ten previous convictions for driving while disqualified, and two for driving while his license was suspended by law. He has been previously imprisoned for this offending.
43․He has been previously convicted for ride/drive a motor vehicle without consent in 2015, 2017, and 2018 in the ACT. In addition, he has numerous previous convictions that include failing to stop for police, possession of cannabis, and obtaining property by deception. He was previously convicted of an offence of furious/reckless/dangerous driving in 2018, negligent driving in 2017, and for culpable driving causing grievous bodily harm in 2011.
44․The recidivist nature of his offending behaviour limits the leniency that can be afforded, and elevates the significance of community protection in the sentences to be imposed. Strongly deterrent sentences that remove Mr Chifuntwe from the community to ensure no further offending of this type for a period of time are warranted.
Subjective circumstances
45․Mr Chifuntwe is now aged 33 years. He was aged 30 years at the time of the series one offending, and aged 33 years at the time of series two.
46․He describes a positive childhood following his migration from Zambia to Australia with his family when he was two years of age. His parents focused on education and provided a strict upbringing. He maintains communication with them but has limited contact with his siblings while in custody. He has contact with one of his two children.
47․Mr Chifuntwe left school after completing Year 11 due to a circumstance that placed significant strain on him at that time. He has since completed a Year 12 equivalent qualification. He has engaged in employment in casual, unskilled roles. He reports trying to reduce his contact with negative associates.
48․He has engaged in substance use since he was an adolescent, with this escalating from when he was 17 years of age, progressing to the use of heroin from the age of 18 years. He reports decreased use of substances in recent years, although he has ongoing issues with methamphetamine. He has experienced occasions of drug-induced psychosis in the past, as well as mental health challenges.
49․Mr Chifuntwe reports wanting to engage with a drug rehabilitation program and has submitted applications for that purpose. He has been assessed as suitable for the Matrix day program. He reports having a commitment to wanting to prioritise rehabilitation upon release from custody, and then secure employment. He intends to live independently from his parents through the Justice Housing Program.
50․It is plain that Mr Chifuntwe would benefit from engagement with a drug rehabilitation program. He has a history of drug dependency, with this having a role in his offending behaviour. He has ongoing challenges with substance use, with this evident from testing that occurred in June 2024, which returned a positive result for methamphetamine.
51․His prospects of engaging successfully in such rehabilitation are however of concern. The pre-sentence report describes him as having responded generally unsatisfactorily to community supervision due to poor attendance.
52․He does have the support of his sister, who writes of her brother’s deep desire to attend rehabilitation and his commitment to address his past trauma. Mr Chifuntwe’s sister describes that when he is sober, he is a wonderful brother and a man of honesty and integrity. She describes having observed in recent months a positive change in his character and a renewed maturity to tackle his issues, commit to rehabilitation, and be the amazing father son, and brother they know he is capable of being.
53․It is also relevant to observe, as submitted on behalf of Mr Chifuntwe, that there are gaps without offending. There was a period of 22 months between the offences which are the subject of this sentencing exercise, and with reference to his criminal history, a gap of some 17 months without any form of offending.
54․Nonetheless, overall, Mr Chifuntwe’s prospects of rehabilitation must be regarded at this time, as the prosecution submitted, as not “particularly positive”. In so considering, it must also be kept in mind, as submitted on Mr Chifuntwe’s behalf, that there is a risk of institutionalisation if there are no opportunities for rehabilitation outside of the custodial setting.
Remorse and insight
55․In relation to the first series of offending, Mr Chifuntwe reports that he attended at the police station in an attempt to do the right thing. He says he was led to believe that he was able to drive with supervision. This is difficult to accept given the regularity with which he had been informed by courts that he was not to drive.
56․As to the second series, Mr Chifuntwe is described as denying that he drove dangerously and claimed that the police had not signalled for him to stop. This is difficult to reconcile with the facts, which suggest a lengthy period of police observation of his driving conduct and their pursuit of him. There is no suggestion that he does not maintain his plea of guilty to the charges. He said that he was unsure why he chose to drive. He had last used drugs a few days prior to the offending.
57․The pre-sentence report otherwise provides that:
When discussing all offences, Mr Chifuntwe minimised the offending and attempted to convey his behaviour in a more positive light. He did not verbalise any awareness of potential impacts of his behaviour on the wider community and focused on his own perceived mistreatment or disadvantage.
58․The absence of remorse and insight into his offending only reinforces the need for deterrent sentences, and emphasises the need for the sentence to reflect accountability.
Pleas of guilty
Series 1 offending
59․The plea of guilty in relation to the disqualified driving was entered after 12 mentions in the Magistrates Court. It appears though that there had not been a plea of not guilty, and the charge came to be transferred to the Supreme Court. In circumstances where the prosecution has described this as an “early plea”, I will afford a reduction in the order of 25 per cent.
60․As to the drive motor vehicle without consent, the plea of guilty was entered in the Supreme Court. The matter had been listed for trial, with the plea entered some three months before that listing. The prosecution accepted that some utilitarian value remained. I consider a reduction in the order of 15 per cent to be appropriate.
Series 2 offending
61․Similarly, the pleas of guilty for the offences in the series two offending were entered in the Supreme Court. This was before a trial date had been listed. A reduction in the order of 20 per cent is appropriate.
Presentence custody
62․The offender has been in custody at various times, on remand and serving sentences, since 29 December 2022. The periods of time in custody in respect to the charges the subject of sentence are:
(a)29 December 2022 to 31 December 2022;
(b)6 May 2023 to 8 May 2023, and
(c)31 May 2024 to 13 November 2024.
63․A total of 173 days will be taken into account on the sentence: s 63 Sentencing Act.
Consideration
64․The circumstances of the first series of offending are somewhat unusual, and of a nature which are of a low objective seriousness. But they are another example of defiance of a court order, which continued with the more serious offending in the series two offending.
65․Plainly, only terms of imprisonment are the appropriate orders. As already observed, the totality principle is applicable, including being relevant in considering the overall sentence so as to avoid a crushing sentence. The application of the totality principle extends in this matter to the orders as to disqualification. Having regard to Mr Chifuntwe’s current periods of disqualification, and the concurrent nature of the disqualified driving in series two, concurrent orders are appropriate: DPP v Holder (No 2) [2023] ACTSC 167 at [94].
66․I also consider it appropriate that there be a nonparole period set, rather than a suspended term. Mr Chifuntwe has exhausted his opportunities for a suspended sentence. A period of parole will provide a deterrent effect, as well as enforce community supervision upon release. I will slightly moderate the nonparole period, in circumstances where there remains some hope of genuine motivation to rehabilitate and given that community protection is promoted with a lengthy period of supervision in the community.
ORDERS
67․For those reasons, the following orders are made:
(1)Kalonga Chifuntwe be convicted of drive motor vehicle without consent (CAN 2022/6463) and be sentenced to 5 months imprisonment, reduced from 6 months on account of the plea of guilty, to commence on 24 May 2024 and end on 23 October 2024.
(2)Kalonga Chifuntwe be convicted of drive whilst disqualified as a repeat offender (CAN 2022/6462), and be sentenced to 3 months imprisonment, reduced from 4 months on account of the plea of guilty, to commence on 24 August 2024 and end on 23 November 2024.
(3)Kalonga Chifuntwe be convicted of aggravated dangerous driving as a repeat offender (CAN 2024/5827), and be sentenced to 1 year imprisonment, reduced from 15 months on account of the plea of guilty, to commence on 24 September 2024 and end on 23 September 2025.
(4)Kalonga Chifuntwe be convicted of drive whilst disqualified as a repeat offender (CAN 2024/6288) and be sentenced to 4 months imprisonment, reduced from 5 months on account of the plea of guilty, to commence on 24 September 2025 and end on 23 January 2026.
(5)The breach of the Magistrates Court sentence of 14 November 2023 is proved and the orders for CAN 2022/4836, CAN 2022/4835 and CAN 2022/3334 are cancelled.
(6)The conviction of Kalonga Chifuntwe of drive with prescribed drug (CAN 2022/4836) be confirmed and the sentence of 3 months imprisonment is imposed to commence on 24 November 2025 and end on 23 February 2026.
(7)The conviction of Kalonga Chifuntwe of drive while disqualified (CAN 2022/4835) be confirmed and the sentence of 3 months imprisonment is imposed to commence on 24 November 2025 and end on 23 February 2026.
(8)The conviction of Kalonga Chifuntwe of drive while disqualified (CAN 2022/3334) be confirmed and be re-sentenced to 3 months imprisonment, reduced from 4 months on account of the plea of guilty, to commence on 24 February 2026 and end on 23 May 2026.
(9)The total sentence imposed be 2 years to commence on 24 May 2024 and end on 23 May 2026.
(10)A nonparole period of 14 months 13 days commencing 24 May 2024 and ending on 5 August 2025.
(11)Pursuant to s 69 of the Road Transport (General) Act 1999 (ACT), I order that the automatic disqualification periods for the offences of driving while disqualified as a repeat offender (CAN 2022/6462, CC 2022/6288) and aggravated dangerous driving as a repeat offender (CAN 2022/5827) are to be imposed concurrently with each other, to commence at the conclusion of the current disqualification period.
| I certify that the preceding [67] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Acting Justice Christensen. Associate: Date: 23 January 2025 |
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