R v Ngerengere (No 2) - [2016] ACTSC 155

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ngerengere (No 2)
Citation:	[2016] ACTSC 155
Hearing Dates:	23 March, 1 April and 10 June 2016
DecisionDate:	15 June 2016
Before:	Refshauge J
Decision:	1. The convictions of Michael Ngerengere for aggravated burglary committed on 18 July 2014 and theft also committed on that day are confirmed. 2. The Director-General is directed to assess Michael Ngerengere for suitability to serve the sentence of imprisonment by an intensive corrections order. 3. The sentencing proceedings are adjourned to 9.30 am on 18 August 2016. 4. Mr Ngerengere is released on bail with the following conditions: a. that he be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him, including as to treatment and counselling for drug and alcohol abuse and mental impairment. b. that he be co-operative with the assessment of his suitability for service of his sentence of imprisonment by an intensive corrections order; c. that he reside at [redacted for legal reasons]; d. that he not absent himself from his place of residence between the hours of 8.00 pm and 7.00 am each day, except in the case of an emergency and for the purpose of attending AA meetings, when he must return directly to his residence at the end of the meeting; e. that he not consume alcohol or illicit drugs; f. that he submit to urinalysis or breath analysis when reasonably required to do so by the person supervising him; and g. that he report to the Officer-in-Charge of City police station each Monday, Wednesday and Friday between the hours of 8.00 am and 8.00 pm.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – intensive corrections order assessment – bail – assessed in community – aggravated burglary – theft – childhood disadvantage – mental illness – extensive criminal history – significant drug use – offender seeking rehabilitation
Legislation Cited:	Bail Act1992 (ACT), ss 9E, 22(2) Crimes (Sentencing) Act2005 (ACT), ss 7, 11, 11(3), 27, 33, 77, 78, 118, Pt 5.4 Criminal Code 2002 (ACT), ss 308, 312
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Channon v The Queen (1978) 33 FLR 433 Hogan v Hinch (2011) 243 CLR 506 Muldrock v The Queen (2011) 244 CLR 120 R v Hawkins [2015] ACTSC 333 R v Hayes [1984] 1 NSWLR 740 R v Hyunh [2005] NSWCCA 220 R v JM [2014] ACTSC 380 R v McMahon [2014] ACTSC 280 R v Monfries (2014) 68 MVR 385 R v Ngerengere [2015] ACTSC 224 R v West [2014] NSWCCA 250 Simonds v The Queen [2013] ACTCA 13 Valentini and Garvey (1980) 2 A Crim R 170
Texts Cited:	Explanatory Statement, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015
Parties:	The Queen (Crown) Michael Ngerengere (Defendant)
Representation:	Counsel Ms S McMurray (1 April and 10 June) (Crown) Mr M Reardon (23 March) (Crown) Mr R Davies (Defendant)

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.

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Details

Case: [2016] ACTSC 155
Decision Date: 15 June 2016

CaseChat Overview and Summary

The case before the court involved Michael Ngerengere, who was convicted of aggravated burglary and theft committed on 18 July 2014. The matter was heard in an Australian court where Ngerengere was facing sentencing for these criminal activities. The central issues before the court involved determining an appropriate sentence, assessing Ngerengere's eligibility for an intensive corrections order, and establishing suitable bail conditions while awaiting sentencing.

The legal issues before the court included assessing the appropriate sentence for the crimes of aggravated burglary and theft, evaluating whether Ngerengere qualified for an intensive corrections order, and setting bail conditions that would ensure his appearance for sentencing while mitigating the risk of reoffending. The court considered Ngerengere's extensive criminal history, significant drug use, mental illness, and childhood disadvantage. These factors were central in determining both the sentencing approach and the conditions of bail.

In delivering the judgment, the court confirmed Ngerengere's convictions for the crimes of aggravated burglary and theft. The court directed the Director-General to assess Ngerengere's suitability for an intensive corrections order, recognising his history of drug use, mental health issues, and potential for rehabilitation. The sentencing was adjourned to allow for this assessment. The court also set bail conditions to ensure Ngerengere's appearance at the next court date while managing the risks associated with his release. These conditions included supervision by the Director-General, restrictions on his movement and substance use, and regular reporting requirements.

The court's final orders confirmed Ngerengere's convictions, directed the Director-General to assess his eligibility for an intensive corrections order, and set specific bail conditions to be observed until the next sentencing hearing.

Orders

Orders of the court

1. The convictions of Michael Ngerengere for aggravated burglary committed on 18 July 2014 and theft also committed on that day are confirmed.

2. The Director-General is directed to assess Michael Ngerengere for suitability to serve the sentence of imprisonment by an intensive corrections order.

3. The sentencing proceedings are adjourned to 9.30 am on 18 August 2016.

4. Mr Ngerengere is released on bail with the following conditions:

a. that he be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person supervising him, including as to treatment and counselling for drug and alcohol abuse and mental impairment.

b. that he be co-operative with the assessment of his suitability for service of his sentence of imprisonment by an intensive corrections order;

c. that he reside at [redacted for legal reasons];

d. that he not absent himself from his place of residence between the hours of 8.00 pm and 7.00 am each day, except in the case of an emergency and for the purpose of attending AA meetings, when he must return directly to his residence at the end of the meeting;

e. that he not consume alcohol or illicit drugs;

f. that he submit to urinalysis or breath analysis when reasonably required to do so by the person supervising him; and

g. that he report to the Officer-in-Charge of City police station each Monday, Wednesday and Friday between the hours of 8.00 am and 8.00 pm.

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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