R v Ndlovu
[2017] ACTSC 244
•28 July 2017
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 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 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’ imprisonment)
In relation to the offence of unauthorised possession of a prohibited firearm, the Court is asked to take into account the transferred charge of unauthorised possession of ammunition contrary to s 249(1) of the Firearms Act (the maximum penalty is a fine).
On 13 October 2016, the offender was committed to the Supreme Court for trial. On 13 June 2017, two weeks prior to the scheduled trial date of 26 June 2017 and on the same date that the co-offender entered a plea of guilty, the offender entered pleas of guilty.
The Crown case was strong in relation to the offences charged. As the victim was somewhat recalcitrant, the Crown may have had difficulty had it sought to prove more serious charges. There was some dispute about whether the circumstances in which the offender entered pleas were markedly less favourable than those in which the co-offender entered a plea. However, I consider that, like the co-offender, the offender should receive a discount of 15 per cent, primarily because of the utilitarian value of the pleas.
From 26 July 2016 to 25 March 2017, the offender was in custody serving a sentence of eight months’ imprisonment imposed by the Magistrates Court. Since 25 March 2017, he has been in custody solely in relation to the incidents for which I am to sentence him.
In relation to the incident on 25 May 2015, the offender was also in custody from 26 May 2015 until 1 June 2015, when he was released to bail (a period of about a week).
Consequently, the sentences that I impose should commence no later than 18 March 2017. I intend to commence them at a slightly earlier date.
Incident on 25 May 2015
On 25 May 2015, the offender agreed to meet Mr Hantas, a cannabis dealer whom he had met on six or seven prior occasions. The arrangement was that the offender offender would give $3500–$3700 to Mr Hantas, who would use the money to purchase cannabis for the offender from a third party.
At the offender’s request, in a car belonging to his partner, Ms Murray, at about 9.00 pm Mr Hantas drove to Bonner to meet the offender. Ms Murray was in the front passenger seat and a friend, Ms Hunter, was seated in the back of the car.
At Bonner, the vehicle met with a vehicle driven by the offender. The offender was accompanied by the co-offender, Mr Smith. Mr Smith had attended high school with Mr Hantas. Mr Smith was seated in the front passenger seat of the offender’s vehicle.
The offender and Mr Smith exited the offender’s vehicle and approached the vehicle occupied by Mr Hantas and the two women. Mr Smith approached the driver’s side, holding a double barrelled, sawn-off shotgun with a 50 cm long wooden stock. The driver side window was down. Mr Smith held the firearm against Mr Hantas’s head and directed him to get out of the car.
The offender then took the firearm from Mr Smith, pointed it at Mr Hantas and directed him to get on the ground. Mr Hantas did so. The offender directed the women to remain in the vehicle. He shut both passenger doors, preventing them from leaving. Ms Murray was shaking uncontrollably and feared for her life and that of Mr Hantas. The offender shouted at Mr Hantas, accusing him of “fucking up [his] business” and threatening that, now the offender had found him, Mr Hantas was “going to disappear tonight”. The offender also accused Mr Hantas of “ripping [him] off”. During the incident, the offender struck Mr Hantas’s head numerous times with the end of the shotgun, causing pain and superficial lacerations.
The offender and Mr Smith discussed what they should do with Ms Murray and Ms Hunter. The offender directed Mr Smith to remove the women from the car. He then changed his mind, requiring that the women return to the rear seat of the vehicle. Ms Hunter feared that Mr Hantas was to be killed and begged to be allowed to hug him. Eventually, the offender permitted her to do so. He then directed Mr Hantas to enter the driver’s seat of Ms Murray’s vehicle. Mr Hantas did so. The offender sat in the front passenger seat, pointing the gun at Mr Hantas. He told Ms Hunter that she must not speak “or the driver dies”.
The offender told Mr Smith to drive the offender’s vehicle towards Gungahlin. Mr Smith drove behind the vehicle driven by Mr Hantas, towards the Gungahlin town centre.
As the vehicles approached Gungahlin, Mr Hantas observed a marked police vehicle. The offender directed him to keep driving but Mr Hantas slowed the vehicle. The offender grabbed the steering wheel but Mr Hantas brought the vehicle to a halt. The women were screaming hysterically. Ms Murray climbed from the back seat and began running towards the police. Mr Hantas followed her, shouting “[g]un, gun”.
During the commotion, the offender leapt from the vehicle and ran away. He contacted Mr Smith and arranged to be picked up. A police search located the offender and Mr Smith. The offender was in possession of $2,382 and 7.8 g of cannabis.
Later, police located a silver double barrelled shotgun with a brown wooden handle about 500 m from where Mr Hantas had stopped the vehicle.
On 28 May 2015, police searched the offender’s vehicle. They located 411.6 g of cannabis in a clip seal bag inside a black garbage bag and a shopping bag containing cash. The offender’s fingerprints were found on the clip seal bag and the garbage bag.
The offender informed the author of the pre-sentence report that the cannabis found in his possession was for personal use. He claimed that Mr Hantas owed him $2800, which was to be repaid through the supply of cannabis. However, the agreed facts suggest that these statements may have been false.
Victim impact
Mr Hantas provided a victim impact statement in which he stated that, throughout the incident, he feared for his life. He said that, as a result of the incident, he had a black eye and a laceration above the eye that had left him with a small scar. As a result of the incident, he lost confidence and spent a lot of time alone in his room. His behaviour changed. Ultimately, he separated from Ms Murray.
The Court acknowledges the grave trauma suffered by the three victims. If anything, the impacts described by Mr Hantas must be an understatement of the trauma suffered as a result of the incident in which, for a significant period, he believed that he would die. There was every reason for him to harbour that belief, which was shared by his female companions.
Objective seriousness of the offences on 25 May 2015
I have no information about the level of dangerousness associated with the particular firearm in question. It was described as a shotgun, rather than an automatic or semi-automatic firearm. The firearm was located on the offender’s person; it was not, for example, in his possession by virtue of being housed at his premises.
When sentencing the offender for the offences of unlawful confinement, I will take into account that the firearm was used for the purpose of causing the victims, particularly Mr Hantas, to fear for their lives; it was an important means by which the offender effected the unlawful confinements. Consequently, I will not take that feature into account when sentencing for the offence of possessing the firearm.
While all three unlawful confinements were very serious matters, the offence committed against Mr Hantas was the most serious. He was the person directly threatened by the firearm for the purpose of securing his confinement. The use of the firearm was associated with several verbal threats to kill Mr Hantas, which were taken very seriously by Mr Hantas and the women.
It is an aggravating feature that the offences were committed in company.
Further, the offences were premeditated; I infer that, when he set up the meeting with Mr Hantas, the offender did not intend to exchange cash for drugs. Rather, he intended to exact revenge for an unspecified ‘offence’ by Mr Hantas involving an earlier ‘rip-off’ which, I infer, involved drugs or the payment for drugs.
The duration of the offences was about 20 minutes, a relatively brief period. On the other hand, the unlawful confinement offences came to an end only because of the fortuitous presence of police at Gungahlin.
The offence of trafficking in a trafficable quantity of cannabis is of relatively low objective seriousness. The quantity was relatively small; it was 411.6 g and the threshold for “trafficable quantity” is 300 g.
Co-offender
Mr Smith pleaded guilty to one count of aiding and abetting an unlawful confinement (Mr Hantas) and two counts of unlawful confinement (Ms Murray and Ms Hunter) on the morning of the listed trial date. The sentencing judge was satisfied that he was remorseful. The sentencing judge noted that Mr Smith did not use the firearm (although the agreed facts in this matter differ on that point) and accepted that Mr Smith was not aware of the firearm until Mr Ndovlu produced it at the scene. Mr Smith was 19 years old at the date of the offences and had no relevant criminal history. The sentencing judge accepted that Mr Smith had good prospects of rehabilitation.
In relation to the unlawful confinement of Mr Hantas, the starting point for the sentence was three years’ imprisonment. In relation to the unlawful confinement of the other victims, the starting point was two years’ imprisonment. After applying discounts and slightly accumulating the sentences, a total sentence of two years and three months’ imprisonment was wholly suspended. In suspending the sentence, the sentencing judge afforded significant leniency to Mr Smith, and I take that into account when considering parity in sentencing.
Mr Smith’s subjective circumstances were not significantly stronger than those of the offender. However, the offender’s role in the offences was of much greater objective seriousness. The offender was dominant in the incident, the incident was motivated by the offender’s desire to avenge a perceived wrong and, most importantly, it was the offender who brought the firearm and was primarily responsible for using it to threaten Mr Hantas. The offender was also in the vehicle with the victims during their confinement.
Incident on 25 July 2016
The victim, Mr Twigg, was friends with the offender and the co-offender, Mr Al Mofathel.
At about 10:50 pm on 25 July 2016, the offender and co-offender went to the unit complex where the victim resided. They entered the complex through an unsecured door. They went to the victim’s unit and banged on the door. The offender was carrying a shopping bag containing a modified 12 gauge Boito shotgun. He removed the shotgun and brandished it, continuing to bang on the front door of the unit and yell out. The victim contacted the police.
At about 11:05 pm, police arrived. They encountered the offender and co-offender in the stairwell. The offender was wearing dark clothing and black gloves. Later, it was found that he was in possession of a black balaclava. The co-offender was wearing dark clothing and a dark coloured beanie. The police directed them to leave the premises.
When asked about the shopping bag (which the offender had placed on the ground), the offender said that it belonged to the victim. Police looked inside the bag and saw the shotgun.
Police arrested the offender and co-offender. Later, two shotgun rounds were removed from the firearm.
Prior to Mr Ndlovu removing the shotgun from the bag while outside the victim’s unit, Mr Al Mofathel had no knowledge of it.
When Mr Al Mofathel was arrested, police located a folding knife about 8 cm in length inside his satchel bag. It was on the basis of the possession of the folding knife that Mr Al Mofathel was charged with the offence to which he pleaded guilty.
Objective seriousness of the offences on 25 July 2016
Going equipped with an offensive weapon for aggravated burglary
The gravamen of an offence of carrying an offensive weapon is that the weapon is carried for the purpose of committing a particular crime or a particular type of crime. The offence is not concerned with the actual commission of (in this case) an aggravated burglary, or an attempt to commit an aggravated burglary, but the purpose for which the weapon is carried.
It is an aggravating feature that the offender was in the company of a co-offender.
There are several features which make this a very serious offence of its type. First, an offensive weapon is defined to include a wide range of items, and within that range a shotgun is a very serious type of offensive weapon. Adding to the seriousness of the particular offence is the fact that two shotgun rounds were later removed from the weapon. Third, the offender was wearing dark clothing and gloves and was in possession of a black balaclava. As it was winter, it is unremarkable that the offender was wearing dark clothing and gloves. However, at the very least, the balaclava would have enabled the offender to disguise himself, had he chosen to do so. Fourth, the offence occurred at night and in residential premises. Finally, it was not a case of the offender carrying a weapon in case he should come across an opportunity to commit a burglary; rather, he had a particular burglary in mind which was in the nature of a home invasion.
On the other hand, by the time that the police arrived at the unit complex, the offender had decided to abandon the enterprise.
There is a very significant overlap between the offence of unauthorised possession of a prohibited firearm and the carrying offence. I intend to impose concurrent sentences, thereby ensuring that the offender is not punished twice for the same conduct. Further, I intend to treat the carrying offence as the primary offence in relation to which the weapon is taken into account.
Counsel for the offender agreed that I should infer that the indirect motive for the offences was to obtain drugs or money for drugs. Of itself, the conduct could not have yielded drugs or money for drugs, but the offences supported that ultimate aim.
Further, it was agreed that the offender had consumed illicit drugs prior to committing the offences; inferentially, this created the prospect that the weapon would be possessed and used in an irrational manner.
It is an aggravating feature under s 33 of the Sentencing Act that the offences committed on 25 July 2016 were committed while the offender was on bail for an incident that involved the possession of a firearm.
Co-offender
Yesterday, I indicated that I would sentence the co-offender to 18 months’ imprisonment (reduced from 21 months’ imprisonment). I referred him for an intensive corrections order assessment. In doing so, I noted that the offence committed by the co-offender (which involved carrying a knife which was not produced, rather than a shotgun which was produced) was of substantially lower objective seriousness than that committed by the offender. Should the co-offender be assessed as suitable for an intensive corrections order, the service of a sentence by that means will involve a substantial element of leniency.
Subjective circumstances
The offender was 21 years old at the date of the offences in May 2015 and 22 years old at the date of the offences in July 2016.
There were two prior episodes of criminality. First, in October/November 2014, the offender committed a total of 57 driving offences spanning 21 separate occasions. For many offences, he received a fine or a good behaviour order. In relation to eight offences of aggravated dangerous driving, he received sentences of between 2 and 6 months’ imprisonment and was sentenced to an overall period of 8 months’ imprisonment from 26 July 2016 to 25 March 2017.
The second episode of criminality also concerned traffic offences. The offender committed four offences on 23 March 2015 (drive while licence suspended, state false name or address and use uninsured and unregistered vehicle). On 13 July 2015, the Queanbeyan Local Court imposed fines for these offences.
The offender is the youngest of four children. He is of Zulu heritage and was born in Zimbabwe, where he resided as a child. In 2004, his mother came to Australia and gained employment as a nurse. In 2005, when he was 12 years old, the offender migrated to Australia with his father and siblings.
Although family life was happy, eventually the offender came into conflict with his parents because of the difficulty that he had adjusting to life in Australia, which was culturally very different from Zimbabwe. Because of adjustment issues, the offender became increasingly distant from his parents and felt they did not understand his needs or share his values. However, he has always felt close to his siblings, particularly his oldest brother.
When he arrived in Australia, the offender commenced Year 6. He remained at school until he completed Year 10. At school, he experienced bullying and harassment due to his race. After he left school, he worked in the retail and fast food industries and then as a labourer in the construction industry. At one stage, the offender undertook coursework at the Canberra Institute of Technology, working towards obtaining a Builder’s Licence.
In his adolescence, the offender adopted a group of friends that engaged in antisocial activities including substance abuse.
Until his late teens, the offender was a binge drinker. Following two occasions when he was admitted to hospital with acute alcohol intoxication, he has avoided alcohol.
Since then, the offender has used cannabis and other illegal substances. The offender reported to the author of the pre-sentence report that, by the age of 20, he was using cannabis on a daily basis. He reported that he would purchase a pound (16 ounces) of cannabis for approximately $2500, which was about a month’s supply. The offender reported that, when he was remanded in May 2015, he stopped smoking cannabis and experienced withdrawal symptoms including nightmares and anxiety. However, as the author of the pre-sentence report noted, “[i]t is hard to match his claimed use of the substance with the ability to work full time and reside in the family home.”
The offender informed a reporting psychologist that, for a period, he used methamphetamine heavily. He ceased using it for about four years, resuming on the night of 26 July 2016.
The offender also told the author of the pre-sentence report that, from 20 years of age, he used cocaine approximately once a month but ceased in early 2015. The offender told the author of a later pre-sentence report that by 2015, he was using up to 14 g per day. However, the offender told a reporting psychologist that he developed an addiction to cocaine, and a dependence on the opioid Endone and the sedative Valium, which he abused daily to regulate the effects of cocaine. He said that he was using cocaine daily and needed to sell cocaine in order to maintain his habit.
It is difficult to reconcile these statements and ascertain the truth in relation to the nature and extent of the offender’s substance abuse. However, I accept that, at the time of both incidents, he abused substances and resorted to criminal behaviour that was, at least in part, designed to enable him to finance his drug habit. The psychologist administered tests that showed that there was a high probability that the offender had a substance dependence disorder.
The offender attempted to minimise responsibility for the offences committed in May 2015 and, at least until very recently, he has demonstrated little understanding of the impact that they have had on the victims.
In late 2016, the offender told the reporting psychologist that he was tired of his lifestyle and substance addiction. However, the extent to which the offender is motivated to change his lifestyle is not entirely clear, given that at one stage he advised that he was continuing to take cannabis from time to time while in custody.
Defence counsel described the offender as an immature and wayward young man. That is an understatement. The offender has committed very serious offences on two completely discrete occasions.
Sentencing purposes and comparable cases
In sentencing the offender, the Court is required to take into account the considerations under s 33 of the Sentencing Act that are relevant to the particular offence. I have referred to the relevant considerations above.
The Court is also required to take into account the relevant sentencing purposes in s 7 of the Sentencing Act.
In relation to all offences, the sentencing purposes of adequate punishment and general and personal deterrence, accountability, denunciation and recognition of harm are important.
In relation to the offences against the Firearms Act 1996, I note the underlying principles of the Act, which are directed to ensuring and improving public safety. In relation to such offences, the s 7 purpose of protecting the community is dominant.
In relation to the trafficking offence, general deterrence is a particularly important sentencing purpose. However, as I have noted above, the trafficking offence is towards the lower end of objective seriousness.
Sentences imposed in other cases may be considered as a yardstick against which to measure a proposed sentence, but do not necessarily provide a reliable guide to the appropriate sentencing range. The most reliable guide is the maximum penalty, which applies to the worst category of case.
The offences of unlawful confinement were very serious, particularly the offence committed against Mr Hantas. In Singh v The Queen [2015] ACTCA 65 at [97]–[108] (Singh), the Court set out the appellant’s submissions about cases in this jurisdiction in which offenders had been sentenced for the offence of unlawful confinement. The Court noted the submission at that, in the ACT, cases of unlawful confinement have generally attracted a head sentence of 2 to 5 years’ imprisonment where violence is present as an aggravating circumstance. The upper end of the range is generally reserved for cases involving a high level of violence causing physical injury or threat to cause injury or death, and where the offender had a significant criminal history: [108]. I note that the ACT Sentencing Database statistics bear out this submission. In Singh, the sentence imposed by the primary judge was set aside and, for the offence of unlawful confinement, a sentence of four years’ imprisonment was substituted. There was no relevant discount. The complainant had been confined for a period of up to one and a half hours in distressing circumstances.
In Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017] ACTCA 19, the appellant had appealed against a sentence of three years and six months’ imprisonment (reduced from a starting point of three years and nine months). The circumstances were somewhat similar to those in the present case, except that the offence was not premeditated and the weapon that was used was a knife. On the other hand, the confinement lasted several hours and the victim was driven to a remote location where he was abandoned. The appellant advanced reasonably strong subjective circumstances, but was significantly older than this offender.
In relation to all offences committed by this offender, the sentencing purpose of rehabilitation is important. The offender is an immature young man who is in custody for the first time. The facts that he has a supportive family and a history of employment suggest that there are reasonable prospects of rehabilitation.
For all offences, it is conceded that a significant sentence of full-time imprisonment is the only appropriate penalty.
Sentences
Incident on 25 May 2015
For the offence of trafficking in a trafficable quantity of cannabis, the starting point for the sentence is eight months’ imprisonment, less 10 per cent, and the offender is sentenced to seven months’ imprisonment, from 26 November 2016 to 25 June 2017.
For the offence of unlawful possession of a firearm, the starting point is two years and three months’ imprisonment, less 10 per cent, and the offender is sentenced to two years’ imprisonment, from 26 February 2017 to 25 February 2019.
For the unlawful confinement of Ms Murray, the starting point is three years’ imprisonment, less 10 per cent, and the offender is sentenced to two years and eight months’ imprisonment, from 26 August 2017 to 25 April 2020.
I impose a wholly concurrent sentence in relation to the unlawful confinement of Ms Hunter. The sentence is three years’ imprisonment, less 10 per cent, being two years and eight months’ imprisonment, from 26 August 2017 to 25 April 2020.
For the unlawful confinement of Mr Hantas, the starting point is four years’ imprisonment, less 10 per cent, and the offender is sentenced to three years and seven months’ imprisonment, from 26 December 2017 to 25 July 2021.
Incident on 25 July 2016
For the offence of going equipped with an offensive weapon, the starting point is two years and six months’ imprisonment, less 15 per cent, and the offender is sentenced to two years and one month’s imprisonment.
For the offence of unlawful possession of firearm, considering the transferred offence, the starting point is two years and six months’ imprisonment, less 15 per cent, and the offender is sentenced to two years and one month’s imprisonment
Those sentences will be served concurrently, from 25 June 2020 to 25 July 2022.
This means that the total sentence that I have imposed is five years and eight months’ imprisonment. The total period of imprisonment (including the sentences imposed by the Magistrates Court) is six years’ imprisonment.
In fixing the nonparole period, I have regard to the total period to be spent in custody, including the period relating to the sentences imposed in the Magistrates Court, which commenced on 26 July 2016. I will fix a relatively low nonparole period of 50 per cent of the total period in custody because of the offender’s youth, the fact that this is his first time in custody and the fact that there are reasonable prospects of rehabilitation.
I fix a nonparole period of three years’ imprisonment from 26 July 2016 to 25 July 2019.
| I certify that the preceding eighty-seven [87] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell. Associate: Date: 28 August 2017 |
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