R v Fusimalohi - [2015] ACTSC 220

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Fusimalohi
Citation:	[2015] ACTSC 220
Hearing Date(s):	17 July 2015
DecisionDate:	17 July 2015
Before:	Murrell CJ
Decision:	Sentenced to three years and eight months’ imprisonment, with a non-parole period of 22 months; eligible for release to parole on 1 December 2016.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – property offences – attempted burglary – burglary and theft – multiple similar offences – rehabilitation – non-parole period
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7 33
Cases Cited:	R v Ponfield (1999) 48 NSWLR 327
Parties:	The Queen (Crown) Christopher Fusimalohi (Offender)
Representation:	Counsel Mr D Sahu-Khan (Crown) Mr P Smith (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 64 of 2015

MURRELL CJ:

The offender adheres to pleas of guilty to eight offences. There is a related offence before the Court, bringing the total number of offences before the Court to nine. There is one offence of attempted burglary, four offences of burglary, three offences of theft and the related offence is minor theft. The offences were committed on five separate occasions between 7 November 2014 and 6 December 2014.

Offences of burglary and attempted burglary carry a maximum penalty of 14 years' imprisonment. Offences of theft carry a maximum penalty of 10 years' imprisonment, and offences of minor theft carry a maximum penalty of six months' imprisonment.

As each plea of guilty was entered at an early stage in the Magistrates Court, despite the strong Crown case, the utilitarian value of the plea justifies a discount of 25% on the sentence that otherwise would have been imposed.

Facts

On the afternoon of 7 November 2014, when the owners of the residence were absent, the offender removed a flyscreen and broke a window in an attempt to gain entry to a residence. He failed to do so. He was later identified by fingerprint evidence.

Between 7.00 am and 2.45 pm on 19 November 2014, the offender broke a window adjacent to the front door of premises. He entered and stole items with a total value of $18,659, including watches, a laptop, jewellery and a camera. He was later identified by fingerprint evidence.

Between 8.00 am and 5.30 pm on 26 November 2014, the offender removed a flyscreen and broke a window in order to gain access to premises. He stole three packets of cigarettes, with a total value of $60. He was later identified by fingerprint and other forensic evidence.

Between 28 November and 3 December 2014, the offender committed burglary and minor theft offences. The offender removed a flyscreen and broke the glass of a kitchen window in order to gain access to premises. He stole $30 cash from a jar. He was later identified by fingerprint evidence.

Between 12.30 and 3.30 pm on 6 December 2014, the offender removed a flyscreen and opened a window in order to gain access to premises. He stole…

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.

Continue reading R v Fusimalohi

Details

AGLC: R v Fusimalohi [2015] ACTSC 220
Case: [2015] ACTSC 220
Decision Date: 17 July 2015

CaseChat Overview and Summary

Fusimalohi brought an appeal against his sentence for multiple property offences, including attempted burglary, burglary, and theft. The case was heard in the Court of Appeal, where the legal issues at hand centred around the severity of the sentence and the appropriate non-parole period. The Court had to consider the nature and number of the offences, the appellant's criminal history, and his prospects for rehabilitation.

In evaluating the sentence, the Court of Appeal took into account the appellant's extensive criminal record, which included numerous similar offences, and the seriousness of the crimes committed. The Court noted the appellant's lack of remorse and the need for general deterrence. However, the Court also recognised the appellant's potential for rehabilitation and his circumstances at the time of the offences. The Court concluded that the original sentence was appropriate but adjusted the non-parole period to reflect the appellant's prospects for rehabilitation.

The Court of Appeal reduced the non-parole period from three years to 22 months, acknowledging the appellant's potential for rehabilitation and the need to balance this with the need for general deterrence. The Court emphasised that the appellant must demonstrate significant rehabilitation before becoming eligible for parole. The Court's decision resulted in the appellant being eligible for release on parole on 1 December 2016.

Orders

Orders of the court

Sentenced to three years and eight months’ imprisonment, with a non-parole period of 22 months; eligible for release to parole on 1 December 2016.

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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