R v Fusitua

[1998] QCA 201

COURT OF APPEAL

[1998] QCA 201

PINCUS JA
McPHERSON JA
AMBROSE J

CA No 75 of 1998

THE QUEEN

v.

PAUL FUSITUA  (Applicant)

BRISBANE

..DATE 29/05/98

JUDGMENT

AMBROSE J:  This is an application for leave to appeal against sentences imposed on 6 March 1998 when the applicant pleaded to two counts of armed robbery and one count of assault occasioning bodily harm. 

He had previously been convicted of a number of offences for which he had been granted probation.  On 6 March he also pleaded guilty to breach of probation.

He had also committed the offences of armed robbery and assault during the period of the suspension of sentence previously imposed and he was dealt with also on 6 March with respect to that suspended sentence.

The first count of robbery involving the use of personal violence related to an offence committed on 1 July 1997.  The second count related to a different robbery committed on 14 July 1997 when the applicant was armed with an offensive weapon.  It was on 14 July also that the applicant unlawfully assaulted a man doing him bodily harm; the assault was committed for no apparent reason as the applicant was leaving the scene of the robbery he had just effected.

The applicant is of Tongan extraction and material provided on the sentence makes it clear that he is very seriously addicted to alcohol.  At the time of the commission of the three offences for which he was sentenced in March 1998, he was 20 years of age.  He was 19 years of age when the offences were committed.

All three offences committed in July 1997 were committed at a time when the applicant was on probation and was also subject to a suspended sentence.  A probation order was made on
23 June 1997 when the applicant pleaded guilty in the District Court to a charge of breaking, entering and stealing on
13 November 1996 and also to a charge of wilfully and lawfully damaging a police car on 1 December 1996.

He has a long and unenviable criminal record for one so young.  He was first convicted in the Brisbane Children's Court in July 1994 on two charges and received a good behaviour bond for four months.  On 5 December 1994 he was convicted of a series of minor offences and, again, no conviction was recorded and was, again, placed upon a good behaviour bond.

On 24 October 1995 he was convicted on three charges of unlawful use of a motor vehicle, again, no conviction was recorded and he was put on probation for three years.  On the same occasion he was convicted on two charges of breaking, entering and stealing in 1995.  Again, no conviction was recorded and he was granted probation for three years. 

On the same occasion he was convicted of stealing and of breaking, entering with intent and, again, no conviction was recorded and he was, again, placed on probation for three years.

On 30 December 1995 he was convicted of a series of minor street-type offences, again, no conviction was recorded.  He was ordered to perform community service and was put on probation for 12 months.

Similarly, when convicted for breach of the Bail Act, no conviction was recorded and, again, a probation order was made.

On 11 April 1996 he was convicted of two street offences, no conviction was recorded and he was released on his own recognisance. 

On 6 November 1996 he was, again, convicted of a series of offences involving assaulting police officers, wilful, unlawful damage to property in the night time and a breach of the Bail Act undertaking.

On this occasion he was convicted and sentenced to two months imprisonment, to be suspended for two and a half years.  On the breach of bail undertaking he was convicted and sentenced to three months imprisonment, but the time he'd spent in custody waiting to be dealt with for those offences was treated as time already served.

Again, on 7 November 1996 he was convicted of a breach of a community service order and a breach of probation order.  He was dealt with on this occasion for the original offences upon which those community based orders had been made and he was sentenced to six months imprisonment which, however, was suspended for two and a half years.

He was also imprisoned for eight months for some other offences and this was suspended for two and a half years.  He was sentenced to imprisonment for a period of four months on a stealing charge upon which a community order had been made.

On 23 June 1997 in the District Court he was convicted of breaking, entering and stealing, unlawful damage to property in the night time.  On each of those charges he was convicted and sentenced to imprisonment for six months to be served concurrently.  He was granted probation for two years with special conditions that he undergo, medical, psychiatric and psychological treatment for his dependency on alcohol and that he attend a course designed to assist people to overcome alcohol dependence.

At that time he had been in custody for 204 days, and that was treated as time already served under the sentences imposed.  He was then also dealt with for breach of a suspended sentence by imposition of another suspended sentence and for breach of the probation order.  It is unnecessary and I think unhelpful to analyse precisely the effect of the various orders made and sentences imposed on 23 June 1997.

It suffices to say that very substantially the applicant was released from custody because of the time he had spent in custody awaiting to be dealt with for those matters.  Shortly after those orders were made he was convicted on 10 July 1997 for obstructing the police.

Reference to a Court report from the Queensland Corrections people indicates that the applicant failed to comply with the requirements of the probation orders and community service orders; eventually he left the State of Queensland without permission and a community corrections officers in a report of 5 March 1998 expressed the view that community based supervision was not considered to be viable for the applicant at that time.  It was recommended that he be dealt with for the original offences in respect of which the various community based orders had been made and this was what was done at the time the sentences were imposed which are the subject of this application for leave to appeal.

A report from Boystown line up of 6 March 1988 recounts that the applicant is of Tongan descent who had frequently been ill-treated by his father while under the influence of alcohol and drugs.

He had demonstrated a good academic capacity at school.  However, his unstable home life resulted in him not sufficiently attending at school.  He was a good sportsman, intelligent, and enjoyed, reading, writing and communicating. 
Counsel for the Crown and for the applicant canvassed the various facts at some length.  It seems clear that the
anti-social activity of the applicant was explicable to a large degree by his addiction to alcohol.  At least that was a significant factor contributing to his anti-social activity.

For the Crown it was contended that the top of the range for imprisonment in his case was about seven years.  On behalf of the applicant his counsel contended that the appropriate range was between three years and five years and that all sentences should be concurrent and there should be an early recommendation with respect to parole made on any sentence imposed.

At the close of the submissions for the applicant his counsel observed:

"I have told him I would be submitting three to five years.  If he were to be released after two or three years it gives him a chance to do his education and cure his alcohol problem and come out a better person."

The learned sentencing Judge in imposing the sentences under review drew attention to the fact that the three offences for which he was being sentenced that day, for the first time, had been committed while he was on probation and subject to a suspended sentence imposed only a short time before he committed the offences for which he was being sentenced.

His Honour observed that he had pleaded guilty at a very early stage and that that would have to be taken into account in fixing the sentence.  He pointed out that it was necessary to have regard to the applicant's criminal history and the nature of the offences committed while on probation and under a suspended sentence and to take into account the deterrent effect on him and on other persons, presumably with whom he may have been associated when those offences were committed.

In respect of the first count of robbery committed on 1 July 1997 he was sentenced to imprisonment for three years.  In respect of the count of robbery and assault on an innocent bystander committed on 14 July 1997 he was sentenced to 12

months imprisonment.  Those sentences were made cumulative.  I should re-phrase that. 

The three years imprisonment imposed on count 1 was made cumulative with the 12 months imprisonment imposed with respect to each of counts 2 and 3 although imprisonment upon each of those was to be served concurrently.

With respect to the breach of community-based orders made on 23 June 1997 he was sentenced to six months imprisonment on each of the breaches. They were to be served concurrently with each other but cumulatively upon the sentences of three years imprisonment and 12 months imprisonment previously imposed.

With respect to the suspended sentence imposed in 1996 he was imprisoned for six months and that, of course, operated from date of imposition.

The end result, therefore, was that all told he was required to serve four and a half years imprisonment as a result of the sentences imposed that day.  A period of 96 days was declared to be pre-sentence custody and to be treated as already having been served pursuant to the sentences imposed.

No recommendation was made with respect to eligibility for parole and therefore he will become eligible for parole approximately two years after the imposition of the sentence having regard to the pre-sentence custody.

In effect, the learned sentencing Judge accepted the submissions which had been made by counsel for the applicant who had submitted that the appropriate sentence was one of three to five years with a recommendation that he be eligible for parole after two or three years.

In my view it cannot be said, in the circumstances, having regard to the nature of the offences and the criminal antecedents of the applicant that the sentences imposed were manifestly excessive.  Indeed, the totality of the sentences imposed was at the mid to lower end of the range submitted by counsel for the applicant to be appropriate punishment.  I would therefore refuse application for leave to appeal against sentence.

PINCUS JA:  I agree.

McPHERSON J:  I agree.

PINCUS JA:  The application is refused.

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