R v Chifuntwe
[2016] ACTSC 301
•4 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Chifuntwe |
Citation: | [2016] ACTSC 301 |
Hearing Dates: | 6 July 2016; 4 August 2016 |
DecisionDate: | 4 August 2016 |
Before: | Penfold J |
Decision: | See [44] – [51] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – four counts of obtain property by deception – withdrawal of money transferred from bank accounts of burglary victims – early pleas of guilty – tenuous connection between illicit drug use and offending – significant criminal history including offences after subject offences – offender currently serving sentences of imprisonment for other offences – offender seeking release via suspension rather than non‑parole period – non-parole period re-set – three fully‑suspended sentences of imprisonment and one partially‑suspended sentence of imprisonment. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 64, 66 Criminal Code 2002 (ACT), s 326 |
Cases Cited: | R v Coleman; R v Chifuntwe [2015] ACTSC 225 |
Parties: | The Queen (Crown) Kalonga Chifuntwe (Offender) |
Representation: | Counsel Mr S McLaughlin (Crown) Ms T Warwick (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Capital Lawyers (Offender) | |
File Number: | SCC 22 of 2016 |
The offences
Kalonga Chifuntwe has pleaded guilty to four charges of obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including imprisonment for 10 years.
The incident
The incident from which these charges arose took place in April 2014. In short, following a burglary in which various documents containing identity details and bank account details were stolen, a total of $10,000 was removed from bank accounts held by the victims and paid into Mr Chifuntwe's bank account. Over two days Mr Chifuntwe withdrew that $10,000 in four separate transactions. Those transactions, against the background that, however the money made its way into his account, Mr Chifuntwe was aware that it was not money to which he was entitled, are the subject of the four charges. I shall refer to these as the new offences, although, as will emerge, they were committed before any of the offences for which Mr Chifuntwe is already serving sentences.
The process by which Mr Chifuntwe was charged with the current offences was rather odd. I understand that the offences were reported to police in August 2014, police obtained further information by the end of 2014, and in January 2015 they visited the Alexander Maconochie Centre (AMC) and invited Mr Chifuntwe to take part in an interview, an invitation which he refused.
It seems that nothing particular happened after that until an information was sworn in October 2015, and in due course the charges were mentioned in the Magistrates Court on 2 December 2015. Mr Chifuntwe, who at that stage was in custody, was represented at that mention, but it seems that the need for a warrant to bring him to court was overlooked and so he was not able to enter pleas of guilty that day. However, he then entered his pleas of guilty on his first appearance in court, and the prosecutor has conceded that they were entered at the earliest opportunity. On 10 February 2016, he was committed to this Court for sentence.
In May 2015 I sentenced Mr Chifuntwe for several similar offences committed within a few days after the new offences. At that point I imposed a total sentence of 26 months imprisonment, backdated to 23 August 2014 to take account of pre-sentence custody, and with a non-parole period of 11 months expiring on 22 July 2015 (R v Coleman; R v Chifuntwe [2015] ACTSC 225).
Mr Chifuntwe was not in fact released until early this year. On 23 February this year he was released to begin residential rehabilitation at Karralika, but stayed only for two days. His counsel said on instructions that, having been in custody for roughly four and a half years of the previous six years, and it may even be more than that, Mr Chifuntwe had struggled with being in the community, but still not at liberty, as well as with coming into contact with old associates also involved in rehabilitation.
Mr Chifuntwe remained engaged with parole authorities for some weeks, and was offered a bed in another residential rehabilitation program, but he did not enter that program for the same kinds of reasons that led him to leave Karralika.
In due course, a warrant was issued. Mr Chifuntwe was arrested on 17 May this year and remanded in custody on 19 May. On 24 May 2016 his parole was cancelled, with the effect that his current sentence (taking account also of sentences imposed in the Magistrates Court after I originally sentenced Mr Chifuntwe, but also relating to offences dating back to 2014) will now expire on 24 March 2017. I note that his first week in custody most recently has not so far been attributed to any sentence.
Evidence
As well as the statement of facts, the following material is in evidence before me:
(a)Mr Chifuntwe's criminal history;
(b)the pre‑sentence report dated 29 June this year indicating that Mr Chifuntwe refused an invitation to meet the pre‑sentence report author;
(c)a pre‑sentence report dated 28 July this year, ordered after this sentence hearing began, and prepared with Mr Chifuntwe's cooperation;
(d)a CADAS report dated 4 July 2014 indicating that attempts in March and May this year to contact Mr Chifuntwe to arrange an interview had been unsuccessful. This may have reflected out-of-date information about where Mr Chifuntwe was at the relevant times;
(e)a second CADAS report ordered as a result of Mr Chifuntwe's suggested explanation for his failure to participate in the first assessment, stating that, again, Mr Chifuntwe did not cooperate with the assessment processes; and
(f)the pre‑sentence report and the CADAS assessment that were before me when I sentenced Mr Chifuntwe in May last year; the statement of facts for the offences dealt with at that time, and my sentencing remarks from that earlier sentencing.
All of those documents were tendered by the prosecution.
As well, the defence provided two documents prepared by counsel, being a chronology of Mr Chifuntwe's offending history dating back to February 2010 and a summary of his periods in custody. In brief, those periods are as follows:
(a)four months in custody when he was 19;
(b)34 months served in full with no release on parole between the ages of 19 and 22;
(c)a total of 18 months between August 2014 and February 2016 while he was 23 or 24; and
(d)another nearly three months since being rearrested on 17 May this year.
That is, since Mr Chifuntwe turned 19, just over six years ago, he has spent almost exactly five years in full‑time custody.
As well, Mr Chifuntwe has a poor history of compliance with community based orders. The June 2016 pre‑sentence report also noted that he has twice been subject to disciplinary action in custody, on one occasion leading to the imposition of a period of three days separate confinement. The timing of those issues is not clear from the material before me.
Objective seriousness of the offences
In considering the objective seriousness of the offences, I have had regard to the following matters.
The context of these offences is very concerning, in that the money in Mr Chifuntwe's account had been acquired by someone from a bank account that was apparently accessed by the use of personal information found in a burgled house. However, the particular offences charged involving simply the withdrawal of that money by Mr Chifuntwe from his bank account are relatively less serious than many examples of obtaining money by deception. These offences may not have involved any particular premeditation, but they were certainly not committed on the spur of the moment.
The comment in the pre‑sentence report that the current offences were committed while Mr Chifuntwe was on conditional liberty under a grant of parole does not seem to be correct, although it does seem that other offences allegedly committed while Mr Chifuntwe was on parole earlier this year are currently proceeding through the Magistrates Court.
The new pre‑sentence report describes Mr Chifuntwe's attitude to the current offences as follows:
Mr Chifuntwe agreed with the information contained in the Statement of Facts. He accepted responsibility for his actions and identified anti social influences as a contributing factor to his offending behaviour. Mr Chifuntwe was unable to identify the motivation for his offending, however claimed his actions were not motivated by his drug use. Mr Chifuntwe demonstrated victim awareness and expressed the impact his actions had on the victims of his offences.
These offences are low-level examples of the offence of obtaining money by deception.
Subjective circumstances
I have also had regard in this sentencing to Mr Chifuntwe's subjective circumstances.
As mentioned, the initial pre‑sentence report provided in relation to this sentencing was not informative. However, the recently provided pre‑sentence report contains some useful expansion on the information otherwise available to me.
When I sentenced Mr Chifuntwe in May of 2015 I summarised his personal circumstances as follows:
62.Mr Chifuntwe is now 24. His criminal history in the ACT includes several relatively minor offences such as drug possession and traffic offences. In May 2011 he was sentenced in the Supreme Court for his involvement in an aggravated robbery in which a weapon was used, and was later sentenced in the Magistrates Court for a culpable driving offence that caused grievous bodily harm to a passenger. In the end, he served a total of 31 months in prison ending in the second half of 2013.
63.He has previously responded poorly to Corrective Services supervision, and his previous and current periods in custody have been marked by disciplinary breaches, [this is going back to last year] including one for failing to supply a urine sample for drug testing. I am told that Mr Chifuntwe served the full term of the earlier sentences after having been refused parole on his first application.
64.Mr Chifuntwe’s background is conveniently summarised in the pre‑sentence report, which says:
Born in Zambia, Mr Chifuntwe moved with his family to the ACT when aged two years, returning occasionally to Zambia for holidays. He reported he was raised in a stable and supportive environment and that his formative years were predominantly without incident. He reported that he initially struggled to integrate at school, however, this changed by the time he reached high school.
Mr Chifuntwe stated he still has familial support, this was confirmed by his mother, who added that her son could reside in the family home when next in the community.
The new pre‑sentence report suggests that Mr Chifuntwe still has the same level of family support. As well, I understand that during his brief period in the community earlier this year he formed a new relationship. His girlfriend has been visiting him in the AMC, and he expects that she will go with him if he leaves Canberra after he is released.
Returning to the 2015 pre-sentence report which I quoted in my earlier sentencing remarks:
Mr Chifuntwe reported a poor employment history, with his longest period of employment lasting five months. In relation to education, he stated he completed Year 10 before being asked to leave school partway through Year 11.
...
Mr Chifuntwe reported that while in high school, he began to associate with a negative peer group ... He added he has continued to align himself with antisocial peers since, including during his most recent period in the community. The offender has stated his intention of severing contact with these antisocial peers when released from custody.
The new pre‑sentence report repeats this history of Mr Chifuntwe developing antisocial tendencies and his intention to cease contact with antisocial peers. My earlier remarks continue:
After his release from prison Mr Chifuntwe lived with his parents and worked briefly, but in January 2014 he broke up with a long-time girlfriend and began using drugs again, mainly methamphetamine ... After being arrested in mid-2014, he said, he realised he had a drug problem and applied to go to Karralika, but when he was released after eight weeks (without a residential rehabilitation condition) he did not go into rehabilitation but instead began using drugs again. In oral evidence, Mr Chifuntwe admitted that he had initially seen Karralika as a “get out of gaol free” card, but now accepted that drugs were ruining his life and he needed to get off them.
The new pre‑sentence report provides the following comments about Mr Chifuntwe's drug use:
Mr Chifuntwe reported he commenced illicit substance use at the age of 15 years and described his use as recreational. He reported he used cannabis and ecstasy until the age of 22 years when he commenced methylamphetamine use. Mr Chifuntwe reported steady use of methylamphetamine since that time, however, denied current problematic use of the substance. Mr Chifuntwe advised he is not willing to complete residential rehabilitation as he does not believe his use requires such intensive intervention. Despite this, on 18 July 2016 Mr Chifuntwe was subject to urinalysis testing and returned a positive result for opiates and methylamphetamine.
(although I do note that the opiate apparently was his prescription methadone)
On 22 July 2016, a Drug Use Screening Tool (DAST) was administered to Mr Chifuntwe which indicated his drug use for the preceding 12 months is considered to be a substantial level, requiring assessment.
Rehabilitation
Counsel for Mr Chifuntwe submitted that the offences were committed in the context of drug abuse, although conceding that the evidence before me went no further than the fact that Mr Chifuntwe had been using various drugs during the relevant period. When I sentenced Mr Chifuntwe earlier for similar offences committed during the same period I noted that he "claimed that [his] offending was explained by [his] drug abuse," but went on:
He explained the connection between drug use and this offending by saying that his offending happened because while he was using regularly, he was reckless in his decisions and choices; however he conceded that they were his decisions and his choices.
That is, the claimed connection between drug use and the offending was relatively tenuous and did not go far beyond the fact that significant drug use and the relevant offending were happening during the same period. Nothing more substantial has been put before me on this occasion. Indeed, the new pre‑sentence report notes Mr Chifuntwe's explicit claim that "his actions were not motivated by his drug use".
The apparent absence of the direct connection between drug use and offending may explain why there is very little before me that suggests a genuine intention on Mr Chifuntwe's part to try to deal with his drug use. I note in this context Mr Chifuntwe's participation in the AMC Solaris program at some point before I last sentenced him, and at least three failed attempts at residential rehabilitation in the community, the last one in March this year not even getting as far as Mr Chifuntwe presenting himself for admission to the program.
I do note the submissions that have been made by counsel this morning about Mr Chifuntwe's concern at the discomfort he feels in residential rehabilitation, where he has described himself as feeling “trapped and uncomfortable”.
The author of the most recent pre‑sentence report provided the following opinion about Mr Chifuntwe:
Mr Chifuntwe is a 25 year old male with an extensive criminal history and a poor compliance history with community based orders. Mr Chifuntwe has a history of substance abuse and demonstrated limited insight into how his substance abuse has impacted his decision making. It appears Mr Chifuntwe has an unrealistic perception in relation to the severity of his substance abuse issues.
Mr Chifuntwe has been assessed as medium to high‑risk of general reoffending. His primary areas of risk are in relation to his criminal history, anti social associations and substance abuse history. Mr Chifuntwe would need to demonstrate a commitment to engage in relevant interventions to address his substance abuse issues in order for his risk to reduce.
I do note also in that context that counsel has recently been instructed that Mr Chifuntwe is now receiving one‑to‑one counselling at the AMC and is finding it useful.
Other sentencing considerations
General deterrence is highly significant in relation to offences of this kind which, as already noted, are not heat of the moment offences. Mr Chifuntwe has not avoided offending during his roughly three months in the community earlier this year; however, the current offences were committed before he was last sentenced, so cannot be seen as new examples of a disregard for the law. Nevertheless, I would not accept that Mr Chifuntwe no longer needs personal deterrence.
Pleas of guilty
As noted, the Crown accepts that the pleas of guilty to these offences came as early as possible, and that will be recognised in the sentences I impose.
Other matters
Significance of extension of current custody?
The sentences Mr Chifuntwe is currently serving consist of the sentences I imposed in 2015 and sentences subsequently imposed in the Magistrates Court which added an extra two months to the total sentence. The cancellation of Mr Chifuntwe's parole after some time in the community earlier this year has resulted in the recalculation of the expiry date of those sentences, which is now 24 March 2017.
Counsel submitted that any increase on the end of the sentence currently being served by Mr Chifuntwe will be more burdensome than the equivalent period imposed on a person not currently in custody. I am not sure that this is necessarily the case, or why it should be. Presumably it reflects Mr Chifuntwe's attitude to periods in custody, but this sits oddly with his instructions to counsel that, although he could reapply for parole at any time, subject of course to any extended non-parole period that I set in the context of the new sentences, he currently intends to serve out his full sentence, which will expire in March. Counsel noted that this is partly because the parole supervision requirements, like attendance at residential rehabilitation, will inevitably bring Mr Chifuntwe into contact with old associates from his drug-using days, which he sees as undesirable.
Non-parole period or suspended sentences?
Mr Chifuntwe's counsel, on instructions given for the same reasons, seeks that any early release on the new sentences that I must impose should be via a suspension rather than a non-parole period. Mr Chifuntwe has indicated a wish to move on release to Melbourne, where he has an aunt and uncle with whom he can live and where he hopes to get away from his drug using associates in Canberra.
I understand that, since that indication was given, Mr Chifuntwe has also accepted that, if required, he will comply with Corrections supervision of the sort that might be attached to a suspended sentence, either in Canberra or wherever else it might be able to be transferred to.
There is some difficulty in determining the appropriate way to finalise this sentencing. First, as noted, there should be some concurrency between the sentences I am about to impose and the sentences that Mr Chifuntwe is currently serving, although I cannot see that full concurrency would be appropriate: although the new sentences relate to offences committed during the same period as the others and of a very similar nature, those earlier offences involved money that had been sourced from a completely different bank account that was held by completely different victims. These conclusions mean that the sentences I impose will necessarily expire some time after the sentences Mr Chifuntwe is currently serving.
Secondly, s 66 of the Crimes (Sentencing) Act 2005 (ACT) will require me to set a new non-parole period for the total of the existing sentences and the new sentences I must impose. The only exception to that requirement in the current circumstances would be if the new sentences I impose are fully suspended (s 64, Crimes (Sentencing) Act).
That would mean that, for any of the new sentences that run beyond the current sentences but are fully suspended, there would be a period after the end of Mr Chifuntwe's current sentences during which he would be subject to a good behaviour order, in circumstances in which any breach of that good behaviour order would, in my view, expose him to serving the whole new sentence in full‑time custody, not just the period by which the sentence extends the term of the current sentences but the full term of such a sentence.
Despite the relative complexity of the options for combining full‑time custody and suspended sentences and the risk of Mr Chifuntwe losing the benefit of any concurrency with the current sentences, but noting his disinclination to subject himself to parole supervision in the ACT again, I am inclined to accept Mr Chifuntwe's submissions about suspending the new sentences. Certainly none of the standard options provided by the ACT sentencing and corrections regimes seem to be making any impact on Mr Chifuntwe.
I do note at this point that the significance of sentencing in the way that I have just indicated, and that I will indicate, has been canvassed at some length in court, but also that Mr Chifuntwe's counsel was allowed some time shortly before we resumed this morning to talk to Mr Chifuntwe about the various complexities of the sentencing process and the risks he is taking in the suggestion he has made.
The making of good behaviour orders in relation to the new sentences that are to be suspended will ensure that Mr Chifuntwe has a real incentive to behave himself after he is released from custody, especially if he does manage to start again in a new city.
Since Mr Chifuntwe has recently concluded that supervision, as distinct from mandated residential rehabilitation, may be helpful to him, and since as far as I know the supervision may be able to be transferred to another jurisdiction, I do propose to impose a supervision condition. I would hope that the risk of being brought back to Canberra to serve another term of custody will be more effective in focusing Mr Chifuntwe's mind on the risks of continuing drug use and of the need to make the most of the support that is available to him in the community than the advice of experts seems to have been so far.
Sentence
Mr Chifuntwe, please stand.
Individual sentences
I record convictions on the four offences of obtaining property by deception. I now sentence you to imprisonment as follows:
(a)For charge CC15/8525, involving a withdrawal of $1,000, to four months imprisonment reduced from six months for your guilty plea, to run from 25 November 2016 until 24 March 2017. That is, it will be entirely concurrent with the sentences you are already serving, and that complete concurrency also takes account of your week or so in custody recently before your parole was cancelled.
(b)For charge CC15/8526, involving another withdrawal of $1,000, to four months reduced from six months, to run from 25 December this year to 24 April 2017, and therefore adding one month to the total sentence.
(c)For charge CC15/8527, involving a withdrawal of $3,000, to six months reduced from nine months, to run from 25 December 2016 to 24 June 2017, and adding two months to the total sentence.
(d)For charge CC15/8528, involving a withdrawal of $5,000, to seven months imprisonment reduced from 10 months, to run from 25 February next year to 24 September next year, and therefore adding three months to the total sentence.
On that basis the sentences total 10 months, and add six months to the sentences you are currently serving. The first sentence will expire at the same time as your current sentence. If I were to simply set a new non-parole period for the total sentence, including the new ones, then you could either apply for parole at some point between now and September next year, and seek the transfer of your parole supervision to Victoria, or you could simply serve out the full term without any application for parole.
Instead, however, as your counsel has suggested and as she has discussed with you, I shall simply suspend, subject to an 18-month good behaviour order, the three of the new sentences that extend beyond the end date of the current sentences.
You need to understand then, Mr Chifuntwe, that although the new sentences have been expressed to run concurrently with the existing sentences for several months, the arrangement you have sought and been given means that when you are released from the full‑time custody required by your existing sentences and the first of the new sentences, you will, in my view, be serving a total of nine months imprisonment in the community, and that is what you are at risk of serving in full‑time custody if you don't comply with the 18-month good behaviour order. That is, you are risking, if I can put it this way, three months concurrency that you would otherwise be getting with the sentences you are now serving. So the chance is that you will finish up serving three months extra that you might have avoided.
New non-parole period
Having imposed one new sentence that is to be served in custody immediately, I must set a new non-parole period for the sentences you are currently serving. By my calculations, you are currently serving sentences that as re-set run from 25 March this year to 24 March next year. I am not going to rely on this calculation, because it may not be right, but I will just give you, for your information, the charges that I think are still being served, being CC14/8805, CC14/8796, CC14/8808, CC14/8809, CC14/8810 and CC14/8807.
So by my calculations you are currently serving sentences running from 25 March this year to 24 March next year, a total of a year, which means that I am just still required to set a non-parole period or to explain why not. So I propose to set a new non-parole period, for the existing sentences and the first one that I imposed, to finish on 24 September 2016. So that's another seven weeks away.
That means that between now and 24 September you don't have any entitlement to be released on parole, but if you change your mind in terms of what you've been instructing your counsel, you can go back, from 24 September, and apply for parole.
Suspended sentences
The last three of the new sentences, totalling nine months imprisonment, will be suspended from 25 December this year, and I order that at that point you sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 18 months, subject to the following conditions:
(a)that, for such period not exceeding 18 months as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director‑General or her delegate; and
(b)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.
As I have pointed out, that means that from 25 December this year, in my view, you will only be serving custodial time on the remainder of the old sentences and on the very first of the new sentences that I have imposed. You won't be serving any of the other three sentences, and if you breach your good behaviour order you will risk serving the whole of that nine-month sentence in custody later on.
Now, Mr Chifuntwe, you've heard us discuss the complexities of this. It is remotely possible that one way or another, even if you breach your good behaviour order, you will find yourself serving something less than the nine months in full‑time custody, but I think you should work on the assumption that the 18-month good behaviour order is worth nine months in custody, and that's what you're risking if you breach it.
You will be given a written copy of the good behaviour order when you have to sign it, and it will be read to you by the officials concerned. But in short, what it means is that for the period of 18 months after your sentence is suspended you need to keep out of trouble, you need to not reoffend, and you need to cooperate with your supervision obligations.
If you do commit another offence during that time, or if you otherwise breach your good behaviour order undertaking, you may find yourself back before this Court to be re-sentenced for those three offences, and depending on exactly how you have breached the good behaviour undertaking, you could well find yourself serving some or all of the remaining part of the sentence, that is the total nine months, in full‑time custody.
Other comments
I should also mention to you, Mr Chifuntwe, as I mentioned earlier, it may be that you can get your supervision transferred, when you're released from custody, to another jurisdiction, but that's something you should talk to Corrections about. They will know whether Victoria is a suitable place that is available. So that certainly means that you need to negotiate with them about any plan to leave Canberra while you're subject to the good behaviour order.
If you have any questions about the orders that I have just made, I suggest you have a careful talk to Ms Warwick about it before she goes. The only advice I can give you, Mr Chifuntwe, is that you've suggested that you hope or you believe that you can deal by yourself with your risk factors for reoffending, rather than through any form of residential rehabilitation, and that more generally you can deal with your risk factors better if you don't have to keep coming into contact with drug-using associates and associates who continue to offend.
Now, I hope you're right. I hope you do have the capacity to deal with those problems yourself, but you do need to realise that you're taking on a big responsibility. You need to really work at it, and you also need to realise that at this stage you won't have anyone else to blame if it doesn't work out this time. So I wish you luck and I hope you make a real commitment to that.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: David Hoitink Date: 12 October 2016 |
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