R v Ngerengere (No 5) - [2016] ACTSC 388

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ngerengere (No 5)
Citation:	[2016] ACTSC 388
Hearing Date:	5 December 2016
DecisionDate:	13 December 2016
Before:	Refshauge J
Decision:	1. The Good Behaviour Order made on 28 September 2016 be cancelled. 2. The conviction for aggravated burglary committed on 18 July 2014 be confirmed. 3. Michael Ngerengere be sentenced to 18 months imprisonment to commence on 3 July 2016. 4. The conviction for theft committed on 18 July 2014 be confirmed. 5. Michael Ngerengere be sentenced to 12 months imprisonment to commence on 3 July 2016, to be wholly concurrent on the sentence for aggravated burglary. 6. The sentence be suspended from 10:30am on 14 December 2016 for a period of 18 months. 7. Michael Ngerengere be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months with the following conditions: (a) a probation condition that he accept the supervision of the Director-General or her delegate for a period of 18 months or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him; (b) a condition that he accompany officers at Canberra Recovery Services when released from custody and admit himself to the Bridge Program of Canberra Recovery Services; (c) a condition that, if for any reason he leaves or is discharged from the Program before he has completed it, he present yourself in person to the Registrar of the Supreme Court of the ACT within two working days for a review of this Good Behaviour Order.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – suspended sentence – Good Behaviour Order to allow for drug rehabilitation – administering a Good Behaviour Order in a way that the Sentence Administration Board might administer parole – specific deterrence
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110 Crimes (Sentencing) Act 2005 (ACT), ss 27, 30, 78(7)
Cases Cited:	Guy v Anderson [2013] ACTSC 5 R v McGrail [2016] ACTSC 142 R v Ngerengere [2015] ACTSC 224 R v Ngerengere (No 2) [2016] ACTSC 155 R v Ngerengere (No 3) [2016] ACTSC 299 R v Ngerengere (No 4) [2016] ACTSC 300
Parties:	The Queen (Crown) Michael Ngerengere (Defendant)
Representation:	Counsel Ms S McMurray (Crown) Mr H Jorgensen (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant)
File Number:	SCC 66 of 2015

REFSHAUGE J:

On 7 August 2015, I convicted Michael Ngerengere of offences of aggravated burglary and theft committed on 18 July 2014. I made a Deferred Sentence Order under s 27 of the Crimes (Sentencing) Act 2005 (ACT): R v Ngerengere [2015] ACTSC 224.

The intention was that Mr Ngerengere undertake drug rehabilitation. He had generally conducted himself well in such programs previously and wished to enter the Karalika Therapeutic Community. I gave him that opportunity.

Unfortunately, he encountered…

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 388
Decision Date: 13 December 2016

CaseChat Overview and Summary

The appeal was heard by the Supreme Court of the Australian Capital Territory, where the appellant, Michael Ngerengere, challenged the sentence imposed by the Magistrates Court. Ngerengere had been convicted of aggravated burglary and theft, with the Magistrates Court imposing a Good Behaviour Order instead of a custodial sentence. The order included supervision by Canberra Recovery Services and required Ngerengere to attend their Bridge Program. Ngerengere argued that the order was invalid, as it was not administered in accordance with the Crimes (Sentence Administration) Act 2005 (ACT). The court was required to determine whether the Good Behaviour Order was valid and, if not, what appropriate sentence should be imposed.

The court considered the requirements of the Crimes (Sentence Administration) Act 2005 (ACT), which governs the administration of Good Behaviour Orders. The court found that the order imposed by the Magistrates Court did not comply with the Act, as it did not follow the appropriate procedures for administering such an order. The court also noted that the order was not a true Good Behaviour Order, but rather a form of parole-like supervision, which is not authorised by the Act. The court concluded that the order was invalid and that the appropriate sentence should be a suspended sentence with conditions, including supervision by the Director-General and attendance at the Bridge Program.

In light of its findings, the court cancelled the Good Behaviour Order and imposed a new sentence on Ngerengere. The court confirmed the convictions for aggravated burglary and theft and sentenced Ngerengere to 18 months imprisonment for the aggravated burglary and 12 months imprisonment for the theft, to be served concurrently. The sentence was suspended from a specified date for a period of 18 months, during which Ngerengere must comply with certain conditions, including supervision by the Director-General and attendance at the Bridge Program. The court also required Ngerengere to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months, with specific conditions relating to supervision and program attendance.

The court’s final orders included the cancellation of the original Good Behaviour Order, the confirmation of Ngerengere’s convictions, and the imposition of a suspended sentence with specific conditions. Ngerengere was required to sign an undertaking to comply with the Good Behaviour Obligations under the Act, including supervision and program attendance. If Ngerengere left or was discharged from the Bridge Program before completing it, he was required to present himself to the Registrar of the Supreme Court of the ACT within two working days for a review of the Good Behaviour Order.

Orders

Orders of the court

1. The Good Behaviour Order made on 28 September 2016 be cancelled.

2. The conviction for aggravated burglary committed on 18 July 2014 be confirmed.

3. Michael Ngerengere be sentenced to 18 months imprisonment to commence on 3 July 2016.

4. The conviction for theft committed on 18 July 2014 be confirmed.

5. Michael Ngerengere be sentenced to 12 months imprisonment to commence on 3 July 2016, to be wholly concurrent on the sentence for aggravated burglary.

6. The sentence be suspended from 10:30am on 14 December 2016 for a period of 18 months.

7. Michael Ngerengere be required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months with the following conditions:

(a) a probation condition that he accept the supervision of the Director-General or her delegate for a period of 18 months or such lesser period as the person supervising him considers appropriate and obey all reasonable directions of the person supervising him;

(b) a condition that he accompany officers at Canberra Recovery Services when released from custody and admit himself to the Bridge Program of Canberra Recovery Services;

(c) a condition that, if for any reason he leaves or is discharged from the Program before he has completed it, he present yourself in person to the Registrar of the Supreme Court of the ACT within two working days for a review of this Good Behaviour Order.

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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