Director of Public Prosecutions v Ncube

[2023] ACTSC 16

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Ncube

Citation:

[2023] ACTSC 16

Hearing Date:

30 January 2023

DecisionDate:

3 February 2023

Before:

Berman AJ

Decision:

See [17]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – accessory after the fact to murder – getaway driver – suspended sentence

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 35, 37
Crimes (Sentence Administration) Act 2005 (ACT) s 86
Criminal Code 2002 (ACT) s 717

Cases Cited:

Miller v The Queen [2018] ACTCA 21
R v Elphick (Supreme Court of the Australian Capital Territory, Penfold J, 30 July 2013)
R v Faulkner [2000] NSWSC 944

Parties:

ACT Director of Public Prosecutions

Reatile Ncube (Offender)

Representation:

Counsel

J Hiscox (DPP)

T Jackson (Offender)

Solicitors

ACT Director of Public Prosecutions

Andrew Byrnes Law Group (Offender)

File Number:

SCC 309 of 2022

BERMAN AJ:

1. I want to begin this sentencing judgment by acknowledging that the death of Mr Glen Walewicz on 10 June 2021 was a tragedy which has no doubt affected those whom he loved and who loved him. What makes his death even sadder than would otherwise be the case is that he was an entirely innocent victim, shot by offenders intent on stealing money or drugs who simply went to the wrong address.

1. The court extends its sympathy to Mr Walewicz’s loved ones. But of course sympathy plays no part in my decision as to the sentence to impose upon the offender Reatile Ncube, who has pleaded guilty to an offence of being an accessory after the fact to the murder of Mr Walewicz.

1. That evening, a number of people met up at the home of one of them in Belconnen. The offender drove there but remained in his car. Three people got into Mr Ncube’s car and told him to drive to Mansfield Place in Phillip. He understood that those three were going to demand money from individuals living there. He did not know whether they were armed.

1. The three people got out of the car and went to the home of Mr Walewicz. They went to the wrong unit. He was not their intended target. In response to a knock at the door, he opened it and was shot in the neck, dying shortly thereafter. While this happened the offender was sitting in his car. His role was that of the getaway driver.

1. After Mr Walewicz was shot, the three people returned to the car and the offender started driving away from the scene of the crime.  A little while later one of the occupants of the car made reference to someone having been shot. The offender drove the three people back to the address in Belconnen from which the journey had started, something which took in the order of 20 to 30 minutes. During that trip the offender drove at considerable speed, and at one point drove through an intersection against a red light with the headlights switched off.

1. It was not until some days later that the offender learnt for the first time that the person who had been shot had died. Almost 12 months elapsed before he was arrested on 3 June 2022 and refused bail. He remained in custody for 187 days until he was granted bail about six weeks ago. I am now to sentence him for an offence of being an accessory to the murder of Mr Walewicz. The offender pleaded guilty to this offence pursuant to section 717(1)(b)(ii) of the Criminal Code 2002 (ACT) on the basis that he believed the principal offender to have committed a “related offence”.

1. Two of the most important factors to consider when deciding what sentence to impose upon the offender are the objective gravity of the offence and the moral culpability of the offender. The murder of Mr Walewicz was a serious offence indeed and the offender assisted those involved in his killing by driving them from the scene at high speed. On the other hand, when he provided that assistance the offender did not know that that he was aiding someone who had committed a murder, having been told only that someone had been shot, and that information coming after he had already started driving away from the scene. That is not to underestimate moral culpability; after all, he did most of what he did knowing that someone had been shot, just not that they had died. It was no part of his understanding of what was to occur that night that someone would be shot, let alone killed.

1. It is not surprising in those circumstances that the offender is remorseful for what he did and has had no further contact with the people he assisted.  He has expressed his remorse in a letter to me saying that he takes full responsibility for his actions, and that he cannot blame anyone else for what he did. He now understands that even the smallest actions can have catastrophic consequences such as these.

1. He has expressed his remorse to others too, including the author of the presentence report who noted that the offender “reflected on the impact of the offence on the victim’s family”. I accept that the offender is remorseful for his involvement in this tragic offence.

1. That he is remorseful is consistent with his underlying good character. He has no criminal history, and references tendered on his behalf speak highly of him. There is some concern, however, about his drug use. His friendship with one of the other offenders was based on a shared interest in drug use and his decision to get involved in the offence was one made when he was under the influence of drugs. Despite that, I am satisfied he has good prospects of rehabilitation. The time he spent in custody has obviously been something of an eye-opening experience for him, meeting boys and men in prison who spend most of their life there because of the choices they make. He doesn’t want to make the same choices.

1. Consistent with the offender’s remorse is also his plea of guilty in the Magistrates Court which was entered at the first opportunity once the present charge was laid. In assessing the reduction on sentence to allow for this guilty plea I take into account the matters in section 35 of the Crimes (Sentencing) Act 2005 (ACT). In particular, I do not consider that the prosecution’s case for the offence was overwhelmingly strong.

1. The offender was born in Zimbabwe, coming to Australia with his parents and older brother when he was three years of age. His parents were skilled migrants and provided the offender with a loving upbringing. He was employed at the time he committed this offence and regards getting a job in the near future as important. Since being released on bail he has qualified for his White Card which enables him to work in the construction industry.

1. Although, because of my finding that the offender has good prospects of rehabilitation, personal deterrence may be less important than would otherwise be the case, general deterrence remains a significant factor in deciding what sentence to impose upon the offender. It is in the interests of the community that those who commit serious offences, especially murder, do not receive any support at all in their efforts to evade justice: see R v Faulkner [2000] NSWSC 944. For that reason a sentence of imprisonment is required.

1. Because of the unusual breadth of an offence of accessory after the fact to murder in this jurisdiction, cases from other jurisdictions are less helpful. The prosecution provided a number of comparative cases from the ACT, relying in particular on two of them: Miller v The Queen [2018] ACTCA 21 and R v Elphick (Supreme Court of the Australian Capital Territory, Penfold J, 30 July 2013). I believe that those authorities provide assistance in determining the appropriate sentence to impose in this case and are consistent with what I propose to do.

1. I am satisfied that there is no need in this case for the offender to spend further time in prison. I note the time he has already spent there and consider that that is sufficient. But I also find that there must be further constraints on his liberty and that the offender would benefit from further assistance in ensuring that his problems with drugs do not recur.

1. It is important to note that although I am imposing a sentence upon the offender which should see him serve no time in actual custody in the future, that is because he has already spent 187 days in jail. Had that not been the case I would not have imposed the sentence I am about to announce.

Orders

1. I make the following orders:

1.       The offender is convicted and sentenced to imprisonment for a period of two years from 30 July 2022 to 29 July 2024. That sentence is suspended from today upon him giving an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for the balance of the term. The conditions of the Good Behaviour Order are as follows:

(a)The core conditions in section 86 of the Crimes (Sentence Administration) Act 2005 (ACT)

(b)A probation condition that he accept supervision of the Commissioner of ACT corrective services or his or her delegate and obey all reasonable directions of the person delegated to supervise him for the balance of the term of the sentence or for such lesser period as the person supervising him deems appropriate, and to obey all reasonable directions of the person supervising him including as to urinalysis

1. I note, pursuant to s 37(2) of the Crimes (Sentencing) Act 2005 (ACT) that but for the plea of guilty the period of imprisonment would have been for 2 years’ 8 months.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman

Associate:

Date: 3 February 2023