Ndlovu v The Queen - [2018] ACTCA 33

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Ndlovu v The Queen
Citation:	[2018] ACTCA 33
Hearing Date:	17 August 2018
DecisionDate:	28 August 2018
Before:	Burns, Mossop and Bromwich JJ
Decision:	See [40]
Catchwords:	APPEAL – CRIMINAL LAW – Appeal against sentence – offences involving unlawful confinement and threats with shotgun – separate incident involving going equipped with offensive weapon with intent to commit aggravated burglary – whether primary judge erred by treating being in company as an aggravating factor when going equipped with intent – whether sentence for unlawful confinement manifestly excessive – whether double counting of criminality of possession of firearm and use in unlawful confinement – whether sentence for bare possession of a firearm manifestly excessive having regard to sentence for unlawful confinement – whether excessive accumulation between sentences – appeal allowed – appellant resentenced to same aggregate term of imprisonment STATUTES – INTERPRETATION – Operation and effect of statutes – whether s 71 of the Crimes (Sentencing) Act 2005 (ACT) requires express order to be made about concurrency rather than necessary implication from specified start and end dates of sentences – it does not
Legislation Cited:	Crimes Act 1990 (ACT), ss 34, 150 Crimes (Sentencing) Act 2005 (ACT), ss 71, 71(2) Criminal Code 2002 (ACT), ss 312, 315, 315(2), 316, 316(1), 316(2), 603(5) Firearms Act 1996 (ACT), s 42(a)(iii)
Texts Cited:	Explanatory Statement, Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 Model Criminal Code: Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 3: Theft, Fraud, Bribery and Related Offences, Final Report (December 1995)
Cases Cited:	Le Clair v The Queen [2017] ACTCA 19 R v Ndlovu [2017] ACTSC 244 Singh v The Queen [2015] ACTCA 65 Stokes v R [2008] NSWCCA 123
Parties:	Phimelo Ndlovu (Appellant) The Queen (Respondent)
Representation:	Counsel K Ginges (Appellant) A Williamson (Respondent)
Solicitors Aulich Criminal Law (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	ACTCA 36 of 2017
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 28 July 2017 Case Title: R v Ndlovu Citation: [2017] ACTSC 244 Court File Numbers: SCC 223 of 2015 SCC 224 of 2015 SCC 240 of 2016 SCC 241 of 2016

THE COURT:

Introduction

This is an appeal against sentences imposed by a judge of the Supreme Court (the primary judge): R v Ndlovu [2017] ACTSC 244. The sentences related to two series of offences, one series in 2015 and another in 2016.

The sentences imposed by the primary judge are summarised in the following table:

3. Offence and maximum sentence of imprisonment

Sentence imposed

Start date

End date

Term

Accumulation upon previous sentence

2015 Offences

Trafficking in trafficable quantity of cannabis (Criminal Code 2002 (ACT), s 603(5) – 10 years)

26 November 2016

25 June 2017

Seven months

Base sentence

Unauthorised possession of a firearm (Firearms Act 1996 (ACT), s 42(a)(iii) – 10 years)

26 February 2017

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 Ndlovu v The Queen

Details

AGLC: Ndlovu v The Queen [2018] ACTCA 33
Case: [2018] ACTCA 33
Decision Date: 28 August 2018

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, Ndlovu, by the Supreme Court of the Australian Capital Territory. The appellant had been convicted of offences including unlawful confinement, threats with a shotgun, and going equipped for the commission of an aggravated burglary. The appeal was brought against the sentences imposed by the primary judge.

The central legal issues before the Court of Appeal were whether the primary judge erred in treating the appellant's being in company as an aggravating factor for the offence of going equipped for aggravated burglary, whether the sentence for unlawful confinement was manifestly excessive, and whether there was an impermissible double counting of the criminality associated with the possession and use of a firearm in the unlawful confinement offence. Further, the court considered whether the sentence for the bare possession of a firearm was excessive in light of the sentence for unlawful confinement, and whether there was an excessive accumulation of sentences. The court also considered the operation and effect of s 71 of the *Crimes (Sentencing) Act 2005* (ACT) regarding the ordering of concurrent sentences.

The Court of Appeal found that the primary judge had erred in treating the appellant's being in company as an aggravating factor for the offence of going equipped for aggravated burglary. The court also determined that the sentence for unlawful confinement was not manifestly excessive, nor was there impermissible double counting of the criminality of the firearm possession and use. However, the court found that the sentence for bare possession of a firearm was excessive when considered in conjunction with the sentence for unlawful confinement, leading to an excessive accumulation of sentences. The court clarified that s 71 of the *Crimes (Sentencing) Act 2005* (ACT) does not require an express order for concurrency, but rather that concurrency can be implied from the specified start and end dates of sentences.

The appeal was allowed, and the appellant was resentenced to the same aggregate term of imprisonment, with the sentences ordered to be served concurrently.

Orders

Orders of the court

See [40]

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.

3. Offence and maximum sentence of imprisonment	Sentence imposed
3. Offence and maximum sentence of imprisonment	Start date	End date	Term	Accumulation upon previous sentence
2015 Offences
Trafficking in trafficable quantity of cannabis (Criminal Code 2002 (ACT), s 603(5) – 10 years)	26 November 2016	25 June 2017	Seven months	Base sentence
Unauthorised possession of a firearm (Firearms Act 1996 (ACT), s 42(a)(iii) – 10 years)	26 February 2017