R v Fifita
[2019] ACTSC 362
•28 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Fifita |
Citation: | [2019] ACTSC 362 |
Hearing Date: | 24 May 2019 |
DecisionDate: | 28 May 2019 |
Before: | Burns J |
Decision: | See [29]-[30]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – aggravated burglary – in company and armed with weapons – late plea of guilty – serious example of this type of offending – reasonable prospects for rehabilitation |
Legislation Cited: | Criminal Code 2002 (ACT) s 312 |
Parties: | The Queen (Crown) Andrew Fifita (Offender) |
Representation: | Counsel R Khazma (Crown) J Moffett (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number: | SCC 228 of 2018 |
BURNS J
Andrew Fifita, on 4 April 2019 you entered a plea of guilty to a charge of aggravated burglary. This offence occurred on 17 March 2017. The circumstances of aggravation were that you were in company and that you and your co-offenders were armed with weapons. You possessed a shotgun and your principal co-offender, DT, possessed a machete and pepper spray.
The maximum penalty for the offence of aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) is 20 years' imprisonment, a fine of $300,00, or both.
The facts
Between 10 and 17 March 2017 your co-offender, DT, had a conversation with his then partner in which he told her that he intended to raid a house as he was aware that there was approximately $40,000 worth of drugs stored there.
On 17 March 2017, you and your co-offender planned how you were going to carry out the offence. The plan was for you to invade the victim's home and steal any drugs or money that you could find. For that purpose, you armed yourself with a loaded shotgun and DT armed himself with a machete and a can of OC pepper spray.
The two of you, together with other associates, travelled in two motor vehicles to the victim's home. When the vehicle was stopped in front of the victim's home, gloves and t-shirts were taken from the back of one of the vehicles and provided to those present. The t-shirts were to be wrapped around your heads, effectively used as balaclavas.
You and DT approached the front door of the victim's home. At that time the victim, his mum, and two of their associates were in the house. There was also a pitbull terrier dog.
The outer screen door of the premises was locked, but the wooden front door was partially open. DT knocked aggressively on the front door while you stood behind him. The pitbull terrier ran to the front door and began barking aggressively at you. DT administered the pepper spray downwards towards the dog through the locked screen door. He then forced and pulled open the screen door and attempted to enter through the front door. You both began yelling as you forced entry.
At this time, the victim pulled open the wooden door. You pointed the gun at him. He then attempted to force the wooden door shut.
DT made his way between the screen door and the wooden door and sprayed at the victim with the pepper spray. The victim attempted to shut the wooden door and directed the pitbull terrier away from the encounter. You and DT walked into the premises and DT sprayed the victim with the pepper spray. A melee then occurred in which DT grabbed hold of the victim's jaw and forced his head through the glass panels adjacent to the doorway, causing the victim to sustain a laceration to the right side of his head.
The pitbull terrier then bit DT's leg and he swung the machete towards it. You stepped backwards from the vicinity of the front door and discharged a single shot into the premises, wounding the dog and leaving a hole in the lower part of the hallway wall. Shortly after, the two of you ran from the house and got into one of the motor vehicles. You realised that one of your gloves was missing. You and DT got out of the car to look for the glove, but you could not find it. You then got back into the car and left.
After the incident, a black coloured glove was located close to where the vehicle was parked. Examination of the DNA extracted from the glove concluded that the major component of the DNA was 100 billion times more likely to originate from you than from any other known person. The shotgun used in this offence was later surrendered to police in Sydney by the father of DT.
Consideration
I am satisfied that you were involved in the planning and preparation for this offence, although probably not to the same extent as DT. You were in possession of a particularly lethal weapon, a loaded shotgun. You anticipated taking a share of any money or drugs stolen from the premises. You also, of course, actually entered the house and engaged in violence therein, including discharging the shotgun. You were also aware that your co-offender, DT, was also carrying a weapon.
As I said when sentencing DT, the offence of aggravated burglary revealed by the facts in this case is a serious example of this type of offending. It involved forcible entry by multiple armed persons into residential premises at night. It also involved the use of actual violence. Thankfully no injuries were occasioned to the human occupants of the premises through the use of the weapons. There was nevertheless a very substantial potential for severe injury or even loss of life. I would assess this offence of aggravated burglary as in the mid-range of such offences.
Your culpability should be assessed as essentially the same as that as DT. You have a prior criminal history including convictions for offences of affray and assault occasioning actual bodily harm. Your criminal history, it is fair to say, is not as lengthy as that of DT.
You originally pleaded not guilty to this charge in the ACT Magistrates Court and you were committed for trial to this Court. You maintained your plea of not guilty in this Court and your trial was listed to commence in the week beginning 8 April 2019.
Three other co-offenders, including DT, were also to be tried at the same time in a joint trial. Your matter did not resolve at a Criminal Case Conference on 15 March 2019. You indicated an intention to plead guilty to the present charge on 3 April 2019 and the plea was formally entered the next day. By this time, your three co‑offenders had pleaded guilty and had indicated the [redacted]. DT in particular had [redacted].
[redacted]. Your plea of guilty cannot be said to be an early plea, it was in fact a late plea. I accept, however, that it nevertheless had utilitarian value. I will reduce by approximately 10 per cent to the otherwise appropriate sentence in order to reflect your plea of guilty.
Subjective Features
You are 24 years old and you have been known to ACT Corrective Services since 2015. Your previous compliance with community-based orders has generally been considered satisfactory. Since being remanded in custody on the present charge, your conduct has been described as moderately satisfactory. You have been verbally abusive towards custodial officers however you later apologised to one of the officers involved.
You were born in Sydney and you are the eldest of six children. You describe your childhood in positive terms and stated that you moved out of the family home at age 16 years. You maintained positive and supportive relationships with your parents and five siblings. You are in a de-facto relationship which you described as being positive and supportive. You are able to return to reside with your parents when you are released from custody. I note that your partner has also offered stable accommodation for you upon your release.
You completed Year 10 and you have worked as a labourer. You told the author of the Pre-Sentence Report that you have employment available when you are released from custody. You reported a history of problematic alcohol consumption from 18 years of age. You also reported a history of illicit drug use, namely cannabis. You claim to have abstained from illicit drug use for approximately two years. You have no significant physical or mental health concerns. You were assessed as being a medium low risk of general reoffending.
A letter from your partner describes you as a loving and caring person who plays sports and enjoys parties and other social activities. She said that your involvement in this offence has negatively affected your reputation with your family and friends. She says that you have a plan when you are released from custody to move back in with her, to look for work in the construction industry and to return to church and family events. Your partner states that you have expressed sincere regret for having committed this offence.
A letter from BT speaks of you having assisted him with his mental health problems. He says that you have never displayed anger towards your partner or other female figures in your life. He also says that you have expressed remorse for your involvement in this offence.
A letter from KQ, a former teacher or mentor of yours, speaks of you having been very protective towards other students who were being bullied. He also describes you as being very family orientated and respectful towards your family and women generally.
A letter from another friend, KS, speaks of your regret at involvement in this offence and how it has affected your relationship with your family. She speaks of you as being a protective and caring person.
I take into account the letter from your father UO. As the eldest child you had responsibility for looking after your siblings and you were raised to respect your family. He speaks of you having separated yourself from the elements that were contributing to his downward spiral. He says that your mother has visited you in prison and you have expressed your remorse for your involvement in this offence. You told your mother that you have been undergoing anger management classes and you have returned to reading the Bible.
You have also expressed a desire to return to playing football and to return to employment in the construction industry when you are released from custody. I accept that you have significant family and community support which will assist you in the process of rehabilitation after you leave prison. I also accept that you regret your involvement in this offence and have an understanding of how this offence affected the victim and those present in his home. In my opinion, you have reasonable prospects for rehabilitation.
Sentence
On 5 April 2019, I sentenced DT for his involvement in this offence. My starting point with regard to the offence of aggravated burglary was five years' imprisonment. I reduced that figure by 15 per cent to reflect his plea of guilty and by a further 25 per cent by [redacted]. This resulted in a sentence of three years' imprisonment for the offence of aggravated burglary.
I also sentenced two other co-offenders at that time, but they were involved to a lesser extent in the offence of aggravated burglary and both of them were juveniles. No real issue of parity arises with regard to those two co-offenders.
As at the date of the sentence hearing, 24 May 2019, you have spent 64 days in custody. I convict you of the offence of aggravated burglary (SCCAN 2019/15) and you are sentenced to four years and six months' imprisonment, which I have reduced from five years' imprisonment for your plea of guilty, which will commence on 21 March 2019 and expire on 20 September 2023.
I set a non-parole period of two years and six months, commencing on 21 March 2019 and expiring on 20 September 2021.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: Date: |
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