Ndlovu v The Queen

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.