James Nelson Fusimalohi v The Queen [ACTCA]

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Refshauge J,Lander JJ,Burns
• Judgment Date: 12 December 2012
• Date: 12 December 2012
• Docket Number: No. ACTCA 37 – 2011 No. SCC 386 of 2007 No. SCC 85 of 2008 No. SCC 130 of 2008 No. SC 73 of 2011

[2012] ACTCA 49

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge, Burns, Lander JJ

No. ACTCA 37 – 2011

No. SCC 349 of 2007

No. SCC 386 of 2007

No. SCC 85 of 2008

No. SCC 130 of 2008

No. SC 73 of 2011

James Nelson Fusimalohi

Appellant

and

The Queen

Respondent

Counsel for the Appellant: Mr M Hassall

Counsel for the Respondent: Mr A Doig

AB v The Queen (1999) 198 CLR 111

Alvares v The Queen (2011) 209 A Crim R 297

Banks v The Queen [2005] ACTCA 10

Braham (1994) 73 A Crim R 353

Clarke v Director of Public Prosecutions [2012] ACTCA 7

Cranssen v The King (1936) 55 CLR 509

EG v The Queen [2012] ACTCA 17

House v The King (1936) 55 CLR 499

Love v The Queen [2012] ACTCA 8

McGainey v Barac [2008] ACTSC 48

Mill v The Queen (1988) 166 CLR 59

Neal v The Queen (1982) 149 CLR 305

Richards v The Queen [2012] ACTCA 10

RR v The Queen [2011] NSWCCA 235

R v Betancur-Galvis (2003) 142 A Crim R 527

R v Booth [2004] ACTCA 21

R v Campbell [2010] ACTCA 20

R v Cao (2006) 65 NSWLR 552

R v Dunmall [2008] VSCA 22

R v Healey (2008) 186 A Crim R 433

R v Jabaltjari (1989) 64 NTR 1

R v Olbrich (1999) 199 CLR 270

R v Pajic and Bulger (1990) 48 A Crim R 239

R v Pajic (2009) 23 VR 527

R v Relph [2002] ACTCA 6

R v Storey [ [1998] 1 VR 359

R v Thorn [2010] ACTCA 10

R v Trad [2003] NSWCCA 213

R v TW (2011) 6 ACTLR 18

R v Whyte (2004) 7 VR 397

Shore v The Queen (1992) 66 A Crim R 37

Siganto v The Queen (1998) 194 CLR 656

Wickey v McVicar [2012] ACTCA 38

Crimes Act 1914 (Cth), s 16A(2)(f)

Crimes (Sentencing) Act 2005 (ACT), s 33, pt 4.4

Criminal Law (Sentencing) Act 1988 (SA), s 10(1)(f)

Penalties and Sentences Act 1992 (Qld), s 9

Sentencing Act 1991 (Vic), s 5(2C) and (2B)

Criminal Code 2002 (ACT), ss 308, 311, 312, 315

Edney, R, Bagaric, M, Australian Sentencing: Principles and Practice (Cambridge University Press, 2007)

New South Wales Law Reform Commission, Sentencing, Discussion Paper No 33 (1996)

APPEAL — Appeal against sentence — Specific error — Mistake of fact — Remorse — Neutral findings — No specific error — Appeal dismissed.

APPEAL — Appeal against sentence — Manifest excess — Offences of burglary and theft — Consistency — Range of appropriate sentences — Sentence within range — Appeal dismissed.

ORDER

THE COURT ORDERS THAT:

1. The appeal is dismissed.

REASONS FOR JUDGMENT

Refshauge J

1 The appellant, James Nelson Fusimalohi, was sentenced by Nield AJ for a series of dishonesty offences committed between 23 April 2007 and 2 February 2008. There were six offences of burglary, eight offences of theft, one offence of aggravated burglary and one offence of going equipped for theft.

2 On 28 June 2011, the learned sentencing judge imposed a total sentence of seven years and four months imprisonment and set a non-parole period of five years. Mr Fusimalohi has appealed against the sentence.

3 Mr Fusimalohi prepared and filed his Notice of Appeal himself. At the hearing of the appeal, his counsel sought leave to amend the Notice of Appeal. Leave was granted.

4 Mr Fusimalohi's appeal against the sentence now pleads two grounds, namely, that the learned sentencing judge erred in finding that the appellant lacked any remorse and that the sentence was manifestly excessive.

5 The facts, though extensive, do not need to be recounted in detail. They involve a series of burglaries of residential premises that the appellant entered when the occupiers were not at home. He then stole goods from those premises. The property stolen was valued in total at more than $74,876. Some of the items stolen were not given a value in the sentencing proceedings. In one of the thefts, jewellery valued at more than $43,200 was stolen.

6 The circumstances of aggravation which made one of the trespasses into a residence an aggravated burglary was that Mr Fusimalohi entered with his brother. The articles with which he was equipped to use in relation to the aggravated burglary were two screwdrivers and a pair of gloves.

THE SUPREME COURT PROCEEDINGS

7 The course of the proceedings was unremarkable. Mr Fusimalohi was arrested in respect of some of the offences on 8 August 2007.He was initially refused bail but was subsequently released on bail on 7 September 2007.While on bail, he committed further offences on 2 February 2008.

8 He pleaded guilty in the Magistrates Court to all offences except those committed on 2 February 2008 for which he was committed for trial to the Supreme Court. He subsequently pleaded guilty to those offences.

9 He failed to appear in the Supreme Court in accordance with his bail on 30 June 2008 and, when arrested on 10 November 2010, he had in his possession items of stolen property.

10 The failure to appear in accordance with his bail undertaking and the possession of the stolen property were offences listed on a list of additional offences under pt 4.4 of the Crimes (Sentencing) Act 2005 (ACT).

11 The learned sentencing judge was required to, and did, take these offences into account. As this Court pointed out in R v Campbell [2010] ACTCA 20, at [50], this will generally have the result of increasing the sentence about to be imposed.

12 It is relevant to note that, while the sentencing occurred over four years after the first of the offences for which he was sentenced, over two years of that time elapsed because Mr Fusimalohi had failed to appear to answer his bail and had not thereafter surrendered to police or the Court but was only returned to Court when he was arrested. He cannot, therefore, rely on the delay resulting in him being sentenced for stale offences as any matter of mitigation because it was a result of his own actions. As Angel J, with whom Martin CJ agreed on this issue, said in Braham (1994) 73 A Crim R 353 at 365, ‘[c]ourts are careful not to encourage absconding by affording leniency in relation to it’. Indeed, as was said by Sheller JA, with whom James and O'Keefe JJ agreed, in R v Trad [2003] NSWCCA 213 at [58], an offender who absconds after pleading guilty will ordinarily receive a reduced benefit for the plea of guilty.

13 It does appear that, for some of the period, Mr Fusimalohi was in prison in New South Wales. That does not, however, activate the principles of Mill v The Queen (1988) 166 CLR 59 because the offences were committed while Mr Fusimalohi was in breach of his bail by absconding. Further, he had not appeared to have engaged in any significant rehabilitation which would have otherwise entitled him to some leniency: Shore v The Queen (1992) 66 A Crim R 37.

14 The learned sentencing judge referred in some detail to the subjective circumstances of Mr Fusimalohi. This may be summarised as follows:

• (a) Mr Fusimalohi was, at the time of sentencing, thirty years old, the eldest of his parents' five children.

• (b) He is of Tongan descent but was born in Sydney and the family moved to Canberra when he was five years old.

• (c) He attended school in Canberra, though there was an inconsistency in the Pre-Sentence Report about his final educational attainments which his Honour did not, and did not need to, resolve. He left during or after completing Year 12.

• (d) He has, since leaving school, had a range of casual employment of an unskilled kind and, it appears, periods of unemployment.

• (e) He has drunk alcohol since he was 16 years old, but on a social basis. He has, however, used drugs for many years, commencing with cannabis use when he was 17. He has used heroin and amphetamines. He has made attempts to stop using drugs and, when on remand for these offences, commenced on the methadone maintenance program. His addiction to drugs was the cause of his commission of the offences.

• (f) Mr Fusimalohi is single, having never married, and has no dependents. He is, however, in a relationship with a woman he intends to marry.

• (g) He has a long criminal history, having been dealt with by the courts for 26 offences, including eight burglary offences, six offences of breaking, entering and stealing and eleven theft offences and one offence of receiving stolen property.

THE APPEAL TO THIS COURT

15 I turn to the grounds of the appeal.

Remorse

16 The first ground is that his Honour erred in finding that Mr Fusimalohi lacked any remorse.

17 His Honour said:

I doubt that the offender is remorseful for what he did. I accept that he accepts responsibility for what he did. I accept that he realises the effect of what he did might have upon the victims of his offences. However, as he told the author of the first presentence report, … his only thought was “to get his next fix”, and I doubt that he has given a moment's thought to the victims of his offences.

Evidence of the appellant's remorse

18 Mr M Hassall, who appeared for Mr Fusimalohi, pointed to two passages in the Pre-Sentence Reports which addressed this issue. In the Pre-Sentence Report of 26 February 2008, the author said:

The offender stated that in hindsight he believes the victims of his offences would be “very hurt and angry” that he invaded their privacy and stole their belongings. However, at the time of the offences his only thought was to “get my next hit”.

19 In the Report of 17 May 2011, the author of that Report said:

Mr Fusimalohi expressed sadness about his offending behaviour. He said, “I would hate for this to happen to me.” He indicated the goods stolen had been purchased by someone who has worked hard for them and suggested his actions “make me really cruel”.

Mr Fusimalohi expressed his apologies adding he was “sorry for every upsetting moment”. He reflected, “The person I was, was a person in addiction” and he would want victims of his offending to know that he is “not the person I used to be”.

20 A...