R v Chifuntwe (No 3)
[2017] ACTSC 220
•11 August 2017
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 |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 Islam v The Queen [2017] ACTCA 10 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 substance, namely cannabis (CC 2016/5285), in contravention of s 171(1)(a) of the Drugs of Dependence Act 1989 (ACT).
Maximum penalty: a fine of $150.
(e)Drive motor vehicle with prescribed drug in oral fluid, repeat offender (CC 2016/5286), in contravention of s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).
Maximum penalty: a fine of $3,750 and/or three months imprisonment.
All of the offences arise from the same set of circumstances which began with the robbery. The facts of the robbery and the other offences are set out in R v Chifuntwe (No 2) [2017] ACTSC 134, and also in the Statement of Facts (Ex A).
The offender has been in custody in respect of the above offences for 147 days. Mr Davies, who appeared for the offender, submitted that I should backdate the beginning of the sentence by more than 147 days to take into account the almost 10 months the offender was in prison after his parole was cancelled on 24 May 2016. The Crown said I should not do so because it would amount to ‘double dipping’. I agree with the Crown’s position on this point, although I do think that, in considering issues of totality, I can take into account that there has been an extra period since the offender was arrested that he has spent in custody. In this case, I will specifically take it into account in dealing with the non-parole period.
The offender was born in 1991 in the Central African republic of Zambia. He came to Australia with his parents when he was two years of age. Despite his frequent flouting of the law, his parents have remained loyal to him.
The offender left school before completing Year 12. He is apparently endeavouring to complete this year while in custody. He has not had much employment experience. His longest job lasted for five months. He has otherwise relied upon Centrelink benefits and his mother for financial assistance.
The offender has a long history of alcohol problems. He told the authors of the pre-sentence report that he stopped drinking in 2013. That may not be correct. He has also been taking illegal drugs for some time. He seems to have covered the range of most illicit drugs, although in recent times he has chosen methylamphetamine.
The pre-sentence report says that the offender has a medium to high risk of reoffending. The report says:
Mr Chifuntwe has multiple criminogenic risks, including drug use, unemployment, lack of pro-social activities and peers and antisocial values and attitudes. Unless he successfully addresses these issues, his risk of reoffending is unlikely to reduce.
The offender has not taken serious and prolonged steps to address his issues.
As I have said, the offences are all part of one criminal outing. Most of the offences are not very serious, but the aggravated robbery is serious. It involved the threatening of a man sleeping in his motor car and taking that motor car away.
The failure to stop offence could very easily have resulted in a police officer being run over.
There is no victim impact statement from the owner of the motor vehicle that was the subject of the robbery. Nevertheless, the experience, especially the suggestion of a gun, would have been terrifying to the victim. I also note he lost a number of his possessions.
The offender’s criminal record is long and includes some serious offences. The offender does not seem interested in repaying the loyalty that his parents have shown him. He seems more interested in being a criminal. His attempts at dealing with his drug problem have been unsuccessful and, on my reading of the documents, attempted with little enthusiasm.
According to the CADAS report, the offender blames his entry into the criminal occupation on an offence that he was accused of when he was 17. He was acquitted but somehow he believes that the experience drove him to crime.
I cannot say why the offender has such a bad criminal record, but unless he resolves to reform he will end up as a long-term inhabitant of one prison or another.
Sentencing involves a widespread exercise in which the purposes and objects of sentencing, as described in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT), must be considered. Section 10 says an offender should not be sent to prison unless there is no other option. There is no other option in this case. The aggravated robbery charge is simply too serious to permit any other result.
I note that a suspended sentence and an intensive corrections order were not suggested on the offender’s behalf.
The Crown provided me with a number of comparable cases which will be listed on the title page of this judgment. The Crown suggested that the cases indicated an appropriate range for an aggravated robbery offence was in the order of two years imprisonment. That suggestion does seem to accord with the cases, noting of course that no two cases are precisely the same.
I have already noted that all of the offences arose from the same enterprise. The offender is entitled to have his pleas of guilty taken into account although, as the Crown has pointed out, the evidence against him was very strong. Nevertheless, there was some utilitarian value in the pleas.
Each offence must attract a separate penalty. However, there is a viable argument for concurrency in respect of most of the offences. I do, however, intend to accumulate the sentence for the failing to stop for police offence because of the potential it had to cause serious injury to a police officer.
Three of the offences dictate a mandatory period of licence disqualification. It is three months for the failing to stop offence, 24 months for driving while disqualified and five years for driving with a prescribed drug. The disqualification for the last matter can be reduced but not below 12 months.
The offender is now 26 years of age. His youth and opportunities will soon be lost to him. I do not wish to send him to prison for a period that will leave him with no chance of rehabilitation. On the other hand, his record, the seriousness of at least the aggravated robbery offence, the need for specific and general deterrence and the public demand for appropriate punishment for serious offences all require a not insignificant period of imprisonment.
In my view, these considerations mean the aggravated robbery sentence should be two years imprisonment.
In relation to the disqualification of the offender’s driving licence, because of the drive while disqualified offence, there cannot be a practical reduction of the driving with a prescribed drug disqualification period below 24 months. I do not know if this offender will try and take a more responsible path when he leaves prison, but if he does so he will need a driver’s licence. For that reason, I intend to reduce the period of disqualification for the drive with a prohibited drug offence to 24 months.
I will set a non-parole period of 15 months, which is shorter than I would have otherwise set. This is to take account of the offender being in custody after his parole was cancelled.
I make the following orders:
(a)In respect of the offence of aggravated robbery (CC 7633/16), the offender is sentenced to a period of imprisonment of 2 years to commence on 17 March 2017 and end on 16 March 2019.
(b)In respect of the offence of fail to stop for police (CC 5287/16), the offender is sentenced to a term of imprisonment of 3 months to commence on 17 January 2019 and end on 16 April 2019. The offender’s driver’s licence is disqualified for a period of 3 months commencing today and ending on 10 November 2017.
(c)In respect of the offence of drive motor vehicle without consent (CC 2016/6043), the offender is sentenced to a period of imprisonment of 6 months to commence on 17 March 2017 and end on 16 September 2017.
(d)In respect of the offence of resist a territory public official in the exercise of his functions as a public official (CC 2016/5283), the offender is sentenced to a term of imprisonment of 3 months to commence on 17 March 2017 and end on 16 June 2017.
(e)In respect of the offence of drive while disqualified, repeat offender (CC 2016/5284), the offender is sentenced to a term of imprisonment of 3 months to commence on 17 March 2017 and end on 16 June 2017. The offender’s driver’s licence is disqualified for a period of 24 months commencing today and ending on 10 August 2019.
(f)In respect of the offence of possess prohibit substance, namely cannabis (CC 2016/5285), the offender is fined $50 with no time to pay.
(g)In respect of the offence of drive motor vehicle with prescribed drug in oral fluid, repeat offender (CC 2016/5286), the offender is sentenced to a term of imprisonment of 2 months to commence on 17 March 2017 and end on 16 May 2017. The offender’s driver’s licence is disqualified for a period of 24 months to commence 11 August 2017 and end on 10 August 2019.
(h)The total sentence is a period of imprisonment of 2 years and a 1 month commencing on 17 March 2017 and ending on 16 April 2019.
(i)I set a non-parole period of 15 months commencing on 17 March 2017 and ending on 16 June 2018.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 11 August 2017 |