R v Ndlovu - [2017] ACTSC 244

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ndlovu
Citation:	[2017] ACTSC 244
Hearing Dates:	27–28 July 2017
DecisionDate:	28 July 2017
Before:	Murrell CJ
Decision:	Sentenced to five years and eight months’ imprisonment with a three year nonparole period.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Unauthorised possession of a firearm – Unlawful confinement – Going equipped with an offensive weapon – Trafficking in a trafficable quantity of cannabis – Pleas of guilty – Parity in sentencing – Substance abuse
Legislation Cited:	Crimes Act 1900 (ACT) s 34 Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 35 Criminal Code 2002 (ACT) ss 316(1), 603(5) Firearms Act 1996 (ACT) ss 42(a)(iii), 249(1)
Cases Cited:	Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19 Singh v The Queen [2015] ACTCA 65
Parties:	The Queen (Crown) Phimelo Ndlovu (Offender)
Representation:	Counsel Mr M Fernandez (Crown) Mr J Sabharwal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Prudential Legal (Offender)
File Numbers:	SCC 223 of 2015 SCC 224 of 2015 SCC 240 of 2016 SCC 241 of 2016

MURRELL CJ:

The offender is before the Court for sentence in relation to two incidents.

Incident on 25 May 2015

The offender is to be sentenced for five offences committed on 25 May 2015:

(a)Unauthorised possession of a prohibited firearm contrary to s 42 (a)(iii) of the Firearms Act 1996 (ACT) (Firearms Act) (maximum penalty 10 years’ imprisonment)
(b)Unlawful confinement, contrary to s 34 of the Crimes Act 1900 (ACT) (Crimes Act) (three counts, maximum penalty 10 years’ imprisonment)
(c)Trafficking in a trafficable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT) (Criminal Code) (maximum penalty 10 years’ imprisonment and/or a fine). The trafficable quantity for cannabis is 300 g and the commercial quantity is 30 kg.

On 20 June 2016, the day when the trial was scheduled to commence, the offender entered pleas of guilty. The pleas were entered after the offender was told that the co-offender, Mr Smith, was pleading guilty and would be called to give evidence against him. The offender indicated that he may dispute some of the facts.

Despite the lateness of the pleas, the circumstances in which they were entered and the strength of the Crown case, there was some utilitarian value to the pleas. They saved significant court time and spared the victims the trauma of testifying. A discount of 10 per cent should be allowed pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

Incident on 25 July 2016

The offender is to be sentenced for two offences committed on 25 July 2016:

(a)Going equipped with an offensive weapon for aggravated burglary contrary to s 316(1) of the Criminal Code (maximum penalty 5 years’ imprisonment and/or a fine)
(b)Unauthorised possession of a prohibited firearm contrary to s 42 (a)(iii) of the Firearms Act (maximum penalty 10 years’…

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 Ndlovu

Details

AGLC: R v Ndlovu [2017] ACTSC 244
Case: [2017] ACTSC 244
Decision Date: 28 July 2017

CaseChat Overview and Summary

The case of R v Ndlovu involved the defendant, Ndlovu, who pleaded guilty to multiple charges including unauthorised possession of a firearm, unlawful confinement, going equipped with an offensive weapon, and trafficking in a trafficable quantity of cannabis. The matter was heard in the relevant court which had jurisdiction over such serious criminal offences. The primary dispute centred around the appropriate sentencing for Ndlovu, considering the cumulative nature and severity of the offences, alongside the principle of parity in sentencing.

The court was required to determine the appropriate balance in sentencing for the various offences committed by Ndlovu. This involved considering the gravity of each offence, the cumulative effect of the crimes, and the overarching principle of ensuring that the sentence reflects both the culpability and the need for general deterrence. The court also needed to take into account the defendant’s history of substance abuse, which was pertinent to understanding the context of his criminal behaviour.

In delivering the judgment, the court meticulously evaluated the nature and circumstances of each offence. The court emphasised the significant risk to public safety posed by Ndlovu’s possession of a firearm and the potential harm from his other criminal activities. It was noted that the offences were not isolated incidents but part of a pattern of behaviour, which warranted a robust sentence. The court concluded that a sentence of five years and eight months’ imprisonment, with a non-parole period of three years, was appropriate. This sentence was intended to reflect the seriousness of the crimes, provide deterrence, and facilitate rehabilitation.

Orders

Orders of the court

Sentenced to five years and eight months’ imprisonment with a three year nonparole period.

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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