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[2018] ACTCA 33
Court of Appeal (ACT)
2018-08-28
Burns, Mossop and Bromwich JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL Case Title: Ndlovu v The Queen
Citation: [2018] ACTCA 33
Hearing Date: 17 August 2018
Decision Date: 28 August 2018
Before: Burns, Mossop and Bromwich JJ
Decision: See [40]
Catchwords: APPEAL – CRIMINAL LAW – Appeal against sentence – offences involving unlawful confinement and threats with shotgun – separate incident involving going equipped with offensive weapon with intent to commit aggravated burglary – whether primary judge erred by treating being in company as an aggravating factor when going equipped with intent – whether sentence for unlawful confinement manifestly excessive – whether double counting of criminality of possession of firearm and use in unlawful confinement – whether sentence for bare possession of a firearm manifestly excessive having regard to sentence for unlawful confinement – whether excessive accumulation between sentences – appeal allowed – appellant resentenced to same aggregate term of imprisonment STATUTES – INTERPRETATION – Operation and effect of statutes – whether s 71 of the Crimes (Sentencing) Act 2005 (ACT) requires express order to be made about concurrency rather than necessary implication from specified start and end dates of sentences – it does not
Legislation Cited: Crimes Act 1990 (ACT), ss 34, 150 Crimes (Sentencing) Act 2005 (ACT), ss 71, 71(2) Criminal Code 2002 (ACT), ss 312, 315, 315(2), 316, 316(1), 316(2), 603(5) Firearms Act 1996 (ACT), s 42(a)(iii)
Texts Cited: Explanatory Statement, Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 Model Criminal Code: Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 3: Theft, Fraud, Bribery and Related Offences, Final Report (December 1995)
Cases Cited: Le Clair v The Queen [2017] ACTCA 19 R v Ndlovu [2017] ACTSC 244 Singh v The Queen [2015] ACTCA 65 Stokes v R [2008] NSWCCA 123
Parties: Phimelo Ndlovu (Appellant) The Queen (Respondent) Representation: Counsel K Ginges (Appellant) A Williamson (Respondent)
Solicitors Aulich Criminal Law (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number: ACTCA 36 of 2017
Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Murrell CJ Date of Decision: 28 July 2017 Case Title: R v Ndlovu Citation: [2017] ACTSC 244 Court File Numbers: SCC 223 of 2015 SCC 224 of 2015 SCC 240 of 2016 SCC 241 of 2016
THE COURT:
Introduction
This is an appeal against sentences imposed by a judge of the Supreme Court (the primary judge): R v Ndlovu [2017] ACTSC 244. The sentences related to two series of offences, one series in 2015 and another in 2016.
The sentences imposed by the primary judge are summarised in the following table:
Sentence imposed
2015 Offences
Trafficking in trafficable quantity of cannabis 26 November 25 June Seven Base sentence (Criminal Code 2002 2016 2017 months (ACT), s 603(5) – 10 years)
Unauthorised possession of a firearm (Firearms Act 26 February 25 February Two years 1 year 8 months 1996 (ACT), s 42(a)(iii) – 2017 2019 10 years)
25 April 2020 14 months Unlawful confinement 26 August Two years (Ms Murray) (Crimes Act 2017 eight 1900 (ACT), s 34 – 10 months years)
Unlawful confinement Two years 26 August (Ms Hunter) (Crimes Act, 25 April 2020 eight – 2017 s 34 – 10 years) months
Unlawful confinement Three years 26 December (Mr Hantas) (Crimes Act, 25 July 2021 seven 15 months 2017 s 34 – 10 years) months
2016 Offences
Going equipped with an offensive weapon for 25 June Two years aggravated burglary 25 July 2022 12 months 2020 one month (Criminal Code, s 316(1) – 5 years)
Unauthorised possession of 25 June Two years a firearm (Firearms Act, 25 July 2022 – 2020 one month s 42(a)(iii) – 10 years)
Grounds of appeal
(a) The learned sentencing judge erred when considering aggravating features of the 2016 offences;
(b) The sentence imposed in respect of the “Hantas confinement offence” was manifestly excessive;
(c) Her Honour erroneously double counted criminality in sentences imposed for the confinement offences and 2015 firearms offence;
(d) Her Honour failed to comply with s 71 Crimes (Sentencing) Act 2005 such that the sentences must be served concurrently;
(e) Her Honour imposed excessive accumulation between the 2015 and 2016 offences and failed to give effect to the totality principle; and
(f) Further or in the alternative to ground (c), the learned sentencing judge erred by imposing a sentence in respect of the 2015 firearms possession charge that was, in all the circumstances, manifestly excessive. Facts
The circumstances of each series of offences were set out in her Honour’s judgment. In relation to the offences committed by the appellant on 25 May 2015, the facts were as follows:
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 [sic] would give $3500–$3700 to Mr Hantas, who would use the money to purchase cannabis for the offender from a third party. 13. 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. 14. 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. 15. 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. 16. 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. 17. 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”. 18. 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. 19. 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”. 20. 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. 21. Later, police located a silver double barrelled shotgun with a brown wooden handle about 500 m from where Mr Hantas had stopped the vehicle. 22. 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. 23. 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.
Subjective circumstances
Other matters
Ground (a): Error when considering aggravating features of the 2016 offences
(a) going equipped with an offensive weapon for aggravated burglary contrary to s 316(1) of the Criminal Code 2002 (ACT) (maximum penalty of five years imprisonment and/or a fine); and
(b) unauthorised possession of a prohibited firearm contrary to s 42(a)(iii) of the Firearms Act 1996 (ACT) (maximum penalty of 10 years imprisonment).
316 Going equipped with offensive weapon for theft etc (1) A person commits an offence if the person, in any place other than the person’s home, has with the person an offensive weapon with intent to use it in the course of or in relation to theft or a related offence. Maximum penalty: 500 penalty units, imprisonment for 5 years or both. (2) In this section: related offence means any of the following: (a) robbery; (b) aggravated robbery; (c) burglary; (d) aggravated burglary.
Under s 312 of the Criminal Code the offence of aggravated burglary is committed if the offender has an offensive weapon or is in company.
Section 316 was intended to be based upon cl 16 of the Model Criminal Code: Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 3: Theft, Fraud, Bribery and Related Offences, Final Report (December 1995), 103 and also intended to cover the “core mischief” which s 150 of the Crimes Act had addressed: Explanatory Statement, Criminal Code (Theft, Fraud, Bribery and Related Offences) Amendment Bill 2003 at 29. The section is in addition to the more generally worded s 315 which covers possession of “an article” with intent (rather than an “offensive weapon”) and has a lesser penalty. Section 315(2) incorporates within its definition of “related offence” each of the offences referred to in s 316(2). Because s 316 relates to possession of an “offensive weapon”, it is difficult to see how an offensive weapon could be intended to be used “in the course of” the offences referred to without the relevant offence becoming an aggravated robbery or aggravated burglary rather than a theft, robbery or burglary. That is because the possession of the weapon would statutorily aggravate a robbery or burglary so that it became an aggravated robbery or aggravated burglary. Similarly, the possession of an offensive weapon during a theft would ordinarily be accompanied by at least a threat to use it and hence convert the theft to a robbery which, because of the weapon, would be an aggravated robbery. It is conceivable that there might be circumstances where the words “in relation to” might make the other offences relevant, or it may be that the drafter simply copied the structure of s 315 without giving sufficient attention to the relationship between the offensive weapon and the listed offences.
The appellant points out that a robbery is statutorily aggravated either because the offender is in company or because the offender has an offensive weapon. He then says that the offence under s 316 of the Criminal Code necessarily incorporates within it the possession of an offensive weapon (“has with the person an offensive weapon with intent …”). Therefore, in order to avoid double counting of the circumstance of the possession of the weapon, it would be necessary, in relation to the charge under s 316, to consider being in company as the statutory aggravating factor. The appellant then points out that her Honour (at [44]) treated the fact that the appellant was in company at the time of going equipped for aggravated robbery was an aggravating feature. The appellant submitted that her Honour was not entitled to do so because the statutory feature of aggravation was already inherent in the offence.
The important point to note about s 316 is that it involves, first, possession of the weapon and, second, an intention to use the weapon in relation to one of a variety of offences. The offence in which the weapon is intended to be used is an offence which will be intended to occur in the future. For those intended offences, which are statutorily aggravated by being in company (aggravated burglary, aggravated robbery), it is not necessary to establish that the offender was in company at the time that the offence under s 316 was committed. Rather, it must be shown that the offender intended to be in company when the other offence was to be committed. Being in company is therefore not an element of the offence under s 316. As a consequence, if the offender is in company at the time that the offence under s 316 is committed, that may appropriately be considered to be an aggravating factor. There is therefore no error in the statement by her Honour that being in company of a co-offender was an aggravating feature of the offence.
HER HONOUR: … He had the balaclava, the gloves et cetera. It was at night at a residential premises. [COUNSEL FOR THE OFFENDER]: Just in relation to that, I don’t wish, as I said, to quibble with you, but just in relation to the weather conditions in July of 2016 HER HONOUR: Yes. [COUNSEL FOR THE OFFENDER]: The clothing he had. HER HONOUR: Okay. It may not necessarily be for camouflage purposes. HER HONOUR: All right. That might explain. There’s no law against wearing dark clothing. [COUNSEL FOR THE OFFENDER]: No. HER HONOUR: And gloves are appropriate in winter, but one does not normally go about in possession of a balaclava. That feature probably pales into insignificance, compared to the nature of the weapon. [COUNSEL FOR THE OFFENDER]: Yes.
Ground (b): The sentence imposed in respect of the “Hantas confinement offence” was manifestly excessive
i. the case of Le Clair v The Queen was objectively more serious than the present; and
ii. a table of comparable cases, which the appellant provided, indicated that “many of those comparable sentences involved a lesser term imposed than the appellant’s whole term and, in particular, the Hantas confinement offence”.
The appellant identified that the sentence imposed for the Hantas confinement offence was four years prior to the reduction of 10 per cent on account of the plea of guilty. After that reduction, it was a sentence of three years and seven months, although it was substantially concurrent with the other unlawful confinement offences and the sentences for the 2016 incident.
The principles applicable in relation to a claim of manifest excess in the context of an aggregate sentence which involves elements of concurrency are well known. Sentencing involves the exercise of a discretion which is vital to the administration of the criminal justice. A sentence which is manifestly excessive indicates that the judicial discretion has been inappropriately exercised. Whether that conclusion is reached will be decided in the context of the maximum penalty for the offence, the objective seriousness of the offending conduct and the subjective circumstances of the offender. A sentence will not be manifestly excessive merely because the members of the appeal court would have imposed a lower sentence. Rather, it must be a sentence which is unreasonable or plainly unjust. Where multiple sentences are imposed, the aggregate sentence must be one which appropriately reflects the total criminality. Questions of concurrency and accumulation are discretionary matters for a sentencing judge. There is no single correct approach to structuring multiple sentences and there may be a variety of means to achieve a total sentence that appropriately reflects the totality of the criminal behaviour.
The maximum penalty for each of the unlawful confinement offences was a period of 10 years imprisonment. In the present case, Mr Hantas was confined at gunpoint, beaten and told, in substance, that he was going to be killed and then driven at gunpoint for a period until he escaped. There was no evidence as to whether or not the gun was loaded at the time. The circumstances were such that the victim of the offence would have thought or believed that the gun was loaded having regard to the threats that were made. The period of confinement was not long, approximately 20 minutes. There was a degree of premeditation. We do not accept the submission that the circumstances in the case of Le Clair v The Queen were objectively more serious than the present. Although the circumstances involved the use of a knife held to the victim’s throat and threats of very serious bodily harm, they did not involve an immediate apprehension of death.
Even if, in light of an accurate comparative assessment of the circumstances of the cases, the sentence in Le Clair v The Queen can be seen to have been more lenient, that would not demonstrate manifest excess on the part of the primary judge. That would be inconsistent with the nature of the sentencing discretion and the principles upon which it is reviewed. In so far as the appellant relied upon a table summarising other decisions of the Supreme Court and Court of Appeal, that table demonstrates a range of sentences for unlawful confinement and those sentences were not shown to demonstrate that this sentence was manifestly excessive in light of the sentencing practices of the Supreme Court.
Ground (c): Double counting of criminality in sentences imposed for the confinement offences and 2015 firearms offence
The appellant recognised that her Honour was conscious of the potential for double counting between the use of the firearm in the confinement offences and the firearm offence itself. The appellant notes that a six-month portion of the sentence for unauthorised possession of a firearm was cumulative upon the sentences for the unlawful confinement of Ms Murray and Ms Hunter (26 February 2017 to 25 August 2017). The appellant points to paragraph [27] of her Honour’s reasons where she said:
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.
The appellant submitted that to the extent that the primary judge aggravated the confinement offences by having regard to the appellant’s possession and use of the firearm (which are elements of the firearms offence: Firearms Act, s 42(a)(iii)), she unintentionally double counted the criminality involving the firearm. This was because the sentence involved a six-month period of accumulation and taking the appellant’s use and possession of the firearm into account in aggravating the confinement offences.
The submission made by the appellant is based upon the premise that both possession and use of the firearm were elements of the offence under s 42(a)(iii) of the Firearms Act. While s 42(a)(iii) may cover circumstances where a person “possesses or uses” prohibited firearms, in the present case, the charge in the indictment was that the appellant “possessed a prohibited firearm, namely a shortened double barrel shotgun”. As a consequence, the possession of the firearm was the subject of the charge under the Firearms Act and its use during the course of the interaction with Mr Hantas, Ms Murray and Ms Hunter was appropriately taken into account on the unlawful confinement charges. In those circumstances, the sentences imposed did not involve any double counting of the criminality involved in the use of a firearm.
Therefore, this ground of appeal is not made out. However, the fact that the possession offence did not involve any use of the firearm is relevant to assessing ground (f).
Ground (d): Failure to comply with s 71 of the Crimes (Sentencing) Act 2005 (ACT)
71 Concurrent and consecutive sentences—general rule (1) In the absence of a direction under subsection (2), the primary sentence must be served concurrently with the existing sentence. (2) The court may direct that the primary sentence be served consecutively (or partly concurrently and partly consecutively) with the existing sentence. …
The appellant pointed out that the primary judge made no specific reference to s 71 and did not make any “direction” that any particular sentence be imposed other than concurrently. The appellant recognised that by imposing specific commencement dates for different offences, periods of concurrency and accumulation were necessarily involved in the sentences that her Honour imposed. However, the appellant submitted that her Honour erred in imposing partially cumulative sentences in the absence of complying with s 71.
This is a very narrow point. Does s 71 compel a formal direction to be made before the default rule in s 71 is displaced? Or is it sufficient to amount to a direction that the sentencing court specify start and end dates for sentences of imprisonment which necessarily involve some degree of accumulation? In our view, it is sufficient for the purposes of s 71(2) that the Court specify start and end dates which necessarily incorporate a degree of accumulation. It is not necessary to articulate or identify, by way of a separate order, the extent to which any of the orders are cumulative when it is a necessary consequence of the start and end dates specified by the Court that they are so cumulative. The purpose of s 71 is to make clear a default rule from which a departure must be identified in the orders of the Court. It is sufficient to meet that purpose that the orders of the Court include start and end dates which necessarily involve a degree of accumulation. Therefore, this ground of appeal is not made out.
Ground (e): Excessive accumulation between the 2015 and 2016 offences and failure to give effect to the totality principle
The appellant identified that the sentences in relation to the 2016 incident both commenced on 25 June 2020 which was two years and six months into the sentence for unlawful confinement of Mr Hantas. Given that the total sentence for unlawful confinement for Mr Hantas was three years and seven months, this meant that 11 months of the sentence for unlawful confinement was concurrent with the sentences for the 2016 incident. The appellant submitted that a period of two years and six months accumulation upon the 2016 offences was excessive having regard to the total criminality of the offending. The appellant submitted that the total period of accumulation should have been in the range of nine to 18 months. No particular reason was put forward for that period other than that it would have been “just and appropriate”, having regard to the principle of totality and the “favourable subjective findings” made by the primary judge. It is not clear what particular favourable subjective findings the appellant relied upon.
While the submissions of the appellant suggested that the Hantas unlawful confinement offence involved a period of accumulation of two years and six months upon the 2016 offences, the structure of the sentences involved the 2016 offences being those that were to be served last. In fact, the sentences for the 2016 offences (both of which were two years and one month) involved the appellant serving an additional 12 months beyond the end of the sentence for unlawful confinement of Mr Hantas.
The 2016 offences were clearly discrete offences that bore no relationship with the factual circumstances of the 2015 offences. As a consequence, the basis upon which the sentences might be allowed to operate concurrently was by reason of questions of totality. As part of that process, it was nevertheless necessary for the primary judge to recognise the separate criminality involved in the 2016 offences and hence, there were limits upon the extent to which questions of totality would permit the sentences to be made concurrent. The sentence imposed by the primary judge clearly reflected those competing considerations, requiring an additional 12 months to be served by reason of the 2016 offences, while at the same time allowing a significant period of concurrency so that the totality of the sentences imposed reflected a just and appropriate aggregate. There was no error in the manner in which her Honour dealt with the relationship between the sentences. This ground of appeal is not made out.
Ground (f): In the alternative to ground (c), the sentence for the 2015 firearms possession charge was manifestly excessive
This was a ground of appeal which was added by leave at the hearing of the appeal. It is related to ground (c). The appellant submitted that if her Honour had stripped out of the firearm possession offence any use of that firearm that occurred during the unlawful confinement offence, then the sentence for possession of the firearm was manifestly excessive. Counsel for the appellant pointed out that the appellant only came to possess the firearm at the time the unlawful confinement occurred. That is because he took the weapon from his co-offender after the co-offender had pointed it at Mr Hantas’ head and told him to get out of the car. So far as possession of the firearm after the conclusion of the unlawful confinement was concerned, the agreed facts did not specifically address how the firearm ended up being disposed of some 500m from where the car in which Mr Hantas, Ms Ms Murray and Ms Hunter had been confined. It is possible to draw the inference beyond reasonable doubt from the agreed facts that the weapon remained in the appellant’s possession for a short period after he exited the car.
The offence is, therefore, one of bare possession of the firearm for a limited period of approximately 20 minutes, with all issues relating to its use having been taken into account in the unlawful confinement offences. In those circumstances, we consider that the sentence of two years imprisonment was manifestly excessive. Resentence
Having regard to the limited scope of the firearm possession charge and the relationship between the facts giving rise to that charge and the unlawful confinement offences, a sentence of six months would be appropriate in place of the two years imposed by the primary judge. That appropriately reflects the seriousness of the weapon involved, the limited period and that the charge was possession rather than use. The substitution of this sentence does not, however, require any reduction in the aggregate sentence imposed by the primary judge. The two year sentence imposed by her Honour for the possession of the firearm ran from 26 February 2017 until 25 February 2019. It was concurrent as to four months with the trafficking offence for which a sentence of seven months was imposed from 26 November 2016 until 25 June 2017. Further, the next sentences that were imposed were the sentences for the unlawful confinement of Ms Murray and Ms Hunter, both of which ran from 26 August 2017 until 25 April 2020. Thus, the sentences were concurrent with the last 18 months of the firearm possession charge. There was, therefore, only a two month period from 26 June 2017 until 25 August 2017 during which the firearm possession charge was not concurrent with any other sentence.
In our view, it is appropriate to maintain a degree of concurrency between the sentences, both to reflect that they arise out of a single set of circumstances but also so as to achieve an appropriate aggregate sentence. We consider that the aggregate sentence that her Honour imposed properly reflected the criminality of the offending conduct considered as a whole. We will, therefore, impose a sentence on the firearm possession charge which commences on 26 April 2017 and ends on 25 October 2017. This retains the same two month period, from 26 June 2017 until 25 August 2017, where the sentence is not concurrent with any of the other sentences and hence, maintains the overall structure and duration of the aggregate sentence. The non-parole period that her Honour set remains appropriate.
Order
The orders of the Court are:
The appeal is allowed.
The sentence of imprisonment for two years commencing on 26 February 2017 and ending on 25 February 2019 for unauthorised possession of a firearm on 25 May 2015 is set aside and a sentence of six months imprisonment from 26 April 2017 to 25 October 2017 is substituted.
The sentences for going equipped with an offensive weapon and unauthorised possession of a firearm on 25 July 2016 are each amended so that the start date of 25 June 2020 is substituted with a start date of 26 June 2020.
The sentences imposed by the primary judge are otherwise confirmed. I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Associate:
Date: 28 August 2018
Ndlovu
The Queen [2018] ACTCA 33
The facts relating to the offences committed by the appellant on 25 July 2016 were as follows:
The victim, Mr Twigg, was friends with the offender and the co-offender, Mr Al Mofathel. 37. 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. 38. 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. 39. 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. 40. Police arrested the offender and co-offender. Later, two shotgun rounds were removed from the firearm. 41. Prior to Mr Ndlovu removing the shotgun from the bag while outside the victim’s unit, Mr Al Mofathel had no knowledge of it. 42. 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.
The appellant also submitted that her Honour impermissibly included the possession of a balaclava as an aggravating feature of the offence. He submitted that this should not be considered an aggravating feature of the offence because it was not something “over and above the ordinary attributes” of such an offence: Stokes v R [2008] NSWCCA 123 at [32].
This is not a case where the nature of the offence charged was such that it would necessarily have involved the use or possession of a balaclava. Counsel for the appellant correctly made the point that some types of offending carry with them some ordinary attributes in terms of organisational sophistication and because of that those attributes may not be considered to significantly aggravate an offence. Stokes v R (at [30]-[33]) provides an example of that reasoning in the context of drug offences. However, when considering what is said in Stokes v R, it must be remembered that it was decided in a different statutory context where the identification and consideration of particular features of aggravation were mandated by statute. In the present case, the submission that what her Honour did involves an error cannot be accepted. The presence of clothing for the purposes of disguise or intimidation of a victim is clearly a factor which makes the offending conduct more serious. It reflected a greater degree of planning and a more malign intent than would have been the case had it not been present.
In any event, having regard to the way that this was dealt with during the hearing, it is clear that the matter was not one of great significance so far as the primary judge was concerned. The transcript of the sentencing hearing includes the following exchange:
This ground of appeal is not made out.
Because a resentence is necessary, it is also appropriate to correct a minor error in relation to the 2016 offences. Each of those was identified as starting on 25 June 2020 and ending on 25 July 2022. In order to properly reflect her Honour’s intention that the sentence be for two years and one month and having regard to the fact that each of the other sentences she imposed commenced on 26 of the month, those sentences should be amended so that they commence on 26 June 2020. Once again, this amendment does not affect the overall length of the sentence or the non-parole period.