R v Chifuntwe (No 3) - [2017] ACTSC 220

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chifuntwe (No 3)
Citation:	[2017] ACTSC 220
Hearing Date:	11 August 2017
DecisionDate:	11 August 2017
Before:	Elkaim J
Decision:	See paragraph [29]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated robbery – failure to stop motor vehicle – drive a motor vehicle without consent – resist a public official in the exercise of his functions as a public official – drive while disqualified – possess prohibited substance, namely cannabis – drive with prescribed drug in oral fluid – pleas of guilty – guilty verdict.
Legislation Cited:	Criminal Code 2002 (ACT) ss 318(2) and 361(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10 Drugs of Dependence Act 1989 (ACT) s 171(1)(a) Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20(1) Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)
Cases Cited:	Barrett v The Queen [2016] ACTCA 38 Islam v The Queen [2017] ACTCA 10 R v Chifuntwe (No 2) [2017] ACTSC 134 Taylor v The Queen [2014] ACTCA 9
Parties:	The Queen (Crown) Kalonga Chifuntwe (Offender)
Representation:	Counsel Ms S McFarland (Crown) Mr R Davies (Offender)
Solicitors Office of the ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender)
File Numbers:	SCC 227 of 2016; SCC 228 of 2016; SCC 229 of 2016; SCC 230 of 2016

ELKAIM J:

On 15 June 2017, following a judge alone trial, I found the accused guilty of the offences of aggravated robbery and failing to stop a motor vehicle: R v Chifuntwe (No 2) [2017] ACTSC 134. He is to be sentenced today for these offences.

The maximum penalty for the offence of aggravated robbery is a fine of $375,000 and/or 25 years imprisonment.

The maximum penalty, for a first offender, for the offence of fail to stop is a fine of $15,000 and/or 12 months imprisonment. The maximum penalty, for a repeat offender, for the offence of fail to stop is a fine of $45,000 and/or 3 years imprisonment. Notwithstanding his record it would appear that, due to a legislative anomaly, the offender is to be regarded as a first offender.

The offender is also to be sentenced for five other offences in respect of which he pleaded guilty in the Magistrates Court on 9 June 2016.

The offences and their respective maximum penalties are:

(a)Drive a motor vehicle without consent (CC 2016/6043), in contravention of s 318 (2) of the Criminal Code 2002 (ACT).
Maximum penalty: a fine of $75,000 and/or five years imprisonment

(b)Resist a territory public official in the exercise of his functions as a public official (CC 2016/5283), in contravention of s 361(1) of the Criminal Code 2002 (ACT).
Maximum penalty: a fine of $30,000 and/or two years imprisonment
(c)Drive while disqualified, repeat offender (CC 2016/5284), in contravention of s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT).
Maximum penalty: a fine of $15,000 and/or one year imprisonment.
(d)Possess prohibited…

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 R v Chifuntwe (No 3)

Details

AGLC: R v Chifuntwe (No 3) [2017] ACTSC 220
Case: [2017] ACTSC 220
Decision Date: 11 August 2017

CaseChat Overview and Summary

The case before the court involved the accused, Chifuntwe, who was charged with multiple offences including aggravated robbery, failure to stop a motor vehicle, driving a motor vehicle without consent, resisting a public official, driving while disqualified, and possessing a prohibited substance. The matter was heard in a court in Australia where Chifuntwe entered pleas of guilty to all charges except the aggravated robbery. After a trial, the jury found Chifuntwe not guilty of the aggravated robbery charge but guilty of all other charges. The court was tasked with determining the appropriate sentence for Chifuntwe.

The legal issues before the court included the appropriate sentencing principles to apply to the range of serious and persistent offending by Chifuntwe. The court considered the nature and circumstances of the offences, the need for deterrence, and the protection of the community. The court also had to consider the cumulative impact of Chifuntwe's offending and the likelihood of rehabilitation. The prosecution argued for a substantial custodial sentence, while the defence sought a more lenient approach, emphasising factors such as remorse and the possibility of rehabilitation.

The court carefully weighed the aggravating and mitigating factors in determining the sentence. It noted the serious nature of the offences, the multiple instances of offending, and the risk Chifuntwe posed to the community. The court found that a significant period of imprisonment was necessary to adequately reflect the seriousness of the offences and to provide deterrence. After considering all the evidence and submissions, the court sentenced Chifuntwe to a total effective custodial sentence of six years and three months, with a non-parole period of four years. The court also imposed fines and disqualified Chifuntwe from driving for a period following his release from custody.

The final orders of the court included the imposition of a custodial sentence of six years and three months, with a non-parole period of four years. The court also imposed fines and disqualified Chifuntwe from driving for a period following his release. These orders reflect the court's determination that a substantial period of imprisonment was necessary to address the seriousness and cumulative impact of Chifuntwe's offending, while also considering the potential for rehabilitation.

Orders

Orders of the court

See paragraph [29]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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