Fusimalohi v R [2012] ACTCA 49 | Case summary | Zoe

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Fusimalohi v R [2012] ACTCA 49

[2012] ACTCA 49

Court of Appeal (ACT)|2012-12-12

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Court of Appeal (ACT)

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2012-12-12

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Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

JAMES NELSON FUSIMALOHI v THE QUEEN

[2012] ACTCA 49 (12 December 2012)

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.

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)

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

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.
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.
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.
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.
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
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.
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.
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.
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).
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.
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.
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.
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
I turn to the grounds of the appeal. Remorse
The first ground is that his Honour erred in finding that Mr Fusimalohi lacked any remorse.
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
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’.
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’.
A relevant passage appears in the transcript which is stated to be what his Honour said but which was clearly submissions made by Mr J Sabharwal, who appeared at the sentencing hearing for Mr Fusimalohi. This was not corrected by the parties. It should have been done. As I noted in McGainey v Barac [2008] ACTSC 48 at [4], it is desirable that the transcript that is before an appellate court be correct. There are, however, many instances of appellate courts noting and accepting obvious errors in the transcript of the proceedings below: R v Dunmall [2008] VSCA 22 at [76]; R v Cao (2006) 65 NSWLR 552 at 563; [40]; R v Betancur-Galvis (2003) 142 A Crim R 527 at 534; [40].
During those submissions, Mr Sabharwal relied on Mr Fusimalohi’s remorse, by his apology and including showing some responsibility while in custody, being the remandee’s delegate and teaching music to other detainees.
None of that, nor, indeed, the remorse expressed by Mr Fusimalohi to the author of the Pre-Sentence Report was challenged by the Crown prosecutor. Certainly, there was no evidence adduced by the prosecution to the contrary. Similarly, his Honour did not suggest that he was unpersuaded by the evidence of remorse. Procedural fairness
This is, however, a problematic area and there are conflicting authorities. For example, Kirby P (as his Honour then was), with whom Handley and Sheller JJA agreed, said in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 296: Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.
On the other hand, Neave JA, with whom Ashley JA and Pagone AJA agreed, said in R v Healey (2008) 186 A Crim R 433 at 442–3; [44]–[46]: In R v Storey [[1998] 1 VR 359] this Court accepted the long-standing practice under which sentencing judges normally rely on statements made by counsel from the bar table, while accepting that there will be some cases ‘in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence’[: R v Storey [1998] 1 VR 359 at 371]. It will normally be obvious when this is the case, either because the counsel for the Crown has contested a fact on which an offender relies in mitigation, or the offender’s counsel has submitted that facts relied upon by the Crown should not be taken into account as circumstances aggravating the gravity of the offending. There may be some cases where the judge’s failure to alert defence counsel of his or her intention to draw inferences adverse to the defendant, unless the defendant calls additional evidence, is a breach of procedural fairness. Such a situation arose in R v Mielicki [(1994) 73 A Crim R 72], where the sentencing judge took account of aggravating factors based on facts in depositions which were not included in the agreed statement of facts which provided the basis for the defendant’s guilty plea. It was held that the sentencing judge’s failure to warn the defendant’s counsel of what he intended to do amounted to a breach of procedural fairness, because it had prevented the defendant from disputing those facts, or considering whether his guilty plea should be withdrawn. This is not a case where the judge found that aggravating factors were established beyond reasonable doubt, without giving the offender an opportunity to make submissions on matters falling outside the agreed statement of facts. In a situation such as this, where defence counsel puts forward factors said to go in mitigation and the Crown makes no submissions on that matter, I would be reluctant to take the view that a sentencing judge has an obligation to warn counsel that he or she is considering the possibility of finding that those factors are not established on the balance of probabilities. Defence counsel has a forensic choice as to whether the offender or other witnesses should be called. It seems to me that it would be excessively onerous to require a judge to give a warning of this kind in all plea hearings in which a judge considers that facts relied upon in mitigation are not established on the balance of probabilities.
That latter approach, however, needs to be moderated to take account of the reference by the plurality in R v Olbrich (1999) 199 CLR 270 at 281; [25] to the need for evidence “if the judge [is] not prepared to act on the assertion [of a matter that the accused wishes to draw him or her attention]”. That could only be known if the judge voices that he or she is not prepared so to act.
I do not accept that his Honour was in error in not drawing to counsel’s attention that he had formed the view, if, indeed, he had, that Mr Fusimalohi was not remorseful, though it would have been preferable if he had so the matter could be addressed. The meaning and relevance of remorse
As to remorse, I make the following comments.
In Neal v The Queen (1982) 149 CLR 305 at 315, Murphy J, citing a number of South Australian decisions, said: Contrition, repentance and remorse after the offence are mitigating factors, leading in a proper case to some, perhaps considerable, reduction of the normal sentence ... This factor of contrition is generally given insufficient weight in sentencing in Australia.
Since then, contrition and remorse have become very relevant matters. Thus, for example, s 16A(2)(f) of the Crimes Act 1914 (Cth) requires the sentencing court to have regard to it. Other jurisdictions that have similar provisions include s 10(1)(f) Criminal Law (Sentencing) Act 1988 (SA). Some jurisdictions refer to lack of remorse as a relevant factor, as in s 9 of the Penalties and Sentences Act 1992 (Qld). See also s 5(2C) and (2B) of the Sentencing Act 1991 (Vic).
Section 33(1)(w) of the Crimes (Sentencing) Act 2005 (ACT) expressly requires the court to consider, if relevant and known to the court, “whether the offender has demonstrated remorse”.
R Edney and M Bagaric, in Australian Sentencing: Principles and Practice (Cambridge University Press, 2007) at 175, describe remorse as “the feeling of regret or sorrow for what one has done.” See also Alvares v The Queen (2011) 209 A Crim R 297 at 313; [44], and at 311; [38] where Buddin J noted that there is a relevant distinction between “contrition” and “remorse”. It is, as Winneke P noted in R v Whyte (2004) 7 VR 397 at 403; [21] “not to be confused with such emotions as self pity.” Nor, as Asche CJ noted in R v Jabaltjari (1989) 64 NTR 1 at 10, should it be confused with a different emotion of “being ... sorry for being caught.” As Winneke P said, “it is an elusive concept”.
There are a number of ways in which remorse may be shown. These were usefully summarised by the New South Wales Law Reform Commission in its Discussion Paper, Sentencing, Discussion Paper No 33 (1996) at 192: (i) by a plea of guilty; (ii) by co-operation with police; (iii) by making reparation; (iv) by apologising; (v) by self-inflicted injuries or attempted suicide.
Statements made by an offender are obviously relevant, especially if they show insight into the harm done to victims and amount to the offender taking responsibility for his or her actions. See, for example, R v Pajic (2009) 23 VR 527 at 532; [20].
In Siganto v The Queen (1998) 194 CLR 656 at 663–4; [22], Gleeson CJ, Gummow, Hayne and Callinan JJ said that a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. Remorse and the strength of the prosecution case
It needs to be noted that where the plea is entered in response to an overwhelming prosecution case, the mitigatory effect of the plea of guilty as evidence of remorse may be less or even absent as pointed out in R v Pajic and Bulger (1990) 48 A Crim R 239 at 244.
In this case, the learned sentencing judge could assess, to a degree, the strength of the prosecution case because Mr Fusimalohi had left fingerprints behind in the premises. The case was clearly a strong one. There were, however, unchallenged assertions by Mr Fusimalohi that showed he was sorry for the offences he had committed, assertions he had maintained over time, and which showed insight into the harm done to the victims and were more than expressions of self-pity. In addition, he had commenced the methadone program while in custody, a contribution to his rehabilitation.
A sentencing judge must find the facts for sentencing purposes. In R v Olbrich at 281; [25], [27] the plurality said: Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.) ... As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [[1998] 1 VR 359 at 369] – that a sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. (citation omitted, emphasis in original) The issues on appeal in relation to remorse
Two questions arise on this appeal: did his Honour make a finding that Mr Fusimalohi was not remorseful and should he have made a finding that he was remorseful?
I have referred to what his Honour said above (at [17]). In my view, while his Honour may not have found that Mr Fusimalohi was not remorseful, he did not find, as he was invited to do, that he was remorseful. That is, as shown above, (at [29]-[35]) a relevant mitigating factor.
It needed only to be found on the balance of probabilities. There was no evidence to the contrary of that which supported a finding that he was remorseful.
That Mr Fusimalohi had, as submitted by the respondent, “no real memory of the burglaries” is not inconsistent with him being remorseful, nor is it inconsistent that he had “committed [these offences] largely to fuel his drug habit” or, as his Honour put it, “to get his next fix”.
Nothing else was put that would justify not finding that Mr Fusimalohi was remorseful. Indeed, the pleas of guilty, many of them at an early stage, namely in the Magistrates Court, supported such a finding in addition to what he told the author of the Pre-Sentence Report.
In my view, his Honour erred in not finding, on the balance of probabilities, that Mr Fusimalohi was remorseful.
That error, however, does not determine the outcome of the appeal unless the sentence to be imposed should be one other than that imposed as pointed out by Hayne J in AB v The Queen (1999) 198 CLR 111 at 160; [130]. Before determining whether appellate intervention is justified, I will consider of the second ground of the appeal. Manifest excess
The approach to the ground that a sentence is manifestly excessive (or, indeed, inadequate), has been set out in a number of authorities in this Court. In R v TW (2011) 6 ACTLR 18, I said, in a passage with which Penfold and Lander JJ agreed (at 27–8; [59]–[61]): Neither party to the appeal really provided an insight into the current sentencing standards by which the court could judge the sentence, what has been called ‘the collective wisdom of the judges’: per Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 at 460. In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32]–[35]): 32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):
The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion. See also R v Thorn [2010] ACTCA 10 (at [33]). 33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461): What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range. 34. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. 35. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate. This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not. 46. It is, of course, not sufficient for the appellate court to consider that it would have imposed a different sentence; that is not the test. Such has been made clear by the High Court since at least the decision in Cranssen v The King (1936) 55 CLR 509 at 519 when Dixon, Evatt and McTiernan JJ said: It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court at first instance as improperly exercised. 47. The offence of aggravated burglary, contrary to s 312 of the Criminal Code 2002 (ACT) attracts a maximum penalty of 2,000 penalty units (a fine of $220,000), or imprisonment for 20 years or both. The offence of burglary, contrary to s 311 of the Criminal Code, attracts a maximum penalty of 1,400 penalty units (a fine of $154,000), or imprisonment for 14 years or both. The offence of theft, contrary to s 308 of the Criminal Code, attracts a maximum penalty of 1,000 penalty units (a fine of $110,000), or imprisonment for 10 years or both. The offence of going equipped for theft, contrary to s 315 of the Criminal Code, attracts a maximum penalty of 300 penalty units (that is a fine of $33,000), or imprisonment for three years or both. They are all serious offences, some very serious indeed.
Mr M Hassall, who appeared for Mr Fusimalohi, provided the Court with a table of decisions of both this Court and the Supreme Court in matters of burglary. It had limited value for in many cases it was not clear from the table what sentence had been imposed for burglary where there were multiple offences dealt with at the same time.
To determine what “the collective wisdom of judges” actually is can be difficult in the case of a single offence, but where there are multiple offences, different almost always in nature and circumstances, it becomes almost impossible to find useful comparisons.
Nevertheless, a number of recent decisions of this Court have proceeded by assessing challenged sentences for burglary against the sentences that have been imposed in the Supreme Court. See especially Love v The Queen [2012] ACTCA 8 at [13] and Wickey v McVicar [2012] ACTCA 38 at [25]. Also decided in this context were EG v The Queen [2012] ACTCA 17 and Richards v The Queen [2012] ACTCA 10. The following decisions are also relevant: R v Thorn [2010] ACTCA 10, Banks v The Queen [2005] ACTCA 10, R v Booth [2004] ACTCA 21 and R v Relph [2002] ACTCA 6.
These, together with the other decisions in the table provided, insofar as the sentences are relevantly identifiable, show that sentences for burglary of residential premises in this jurisdiction are generally within the range of imprisonment for from one year to two years and six months.
Of course, more lenient or more severe sentences can be, and have been, imposed where the circumstances justify it. Thus, damage done in the trespass, whether persons were present in the premises and the offender’s antecedents may all require a more severe sentence. There will be also other aggravating factors.
For each sentence for burglary, Mr Fusimalohi was sentenced to a term of imprisonment that was within this range; indeed it was below the upper level of it. Clearly, too, a more severe sentence for the much more serious offence of aggravated burglary was warranted.
Apart from the remorse and the plea of guilty, there were limited mitigatory factors that would favour a more lenient sentence. The strength of the prosecution case moderates the discount that was available for his remorse and his plea of guilty.
It is to be noted that the three offences committed on 2 February 2008 were committed while Mr Fusimalohi was on bail, a seriously aggravating factor. The value of goods stolen was significant. That may well have required the sentences for the theft charges where the more valuable property was stolen to have been increased and perhaps partially accumulated on the sentence for the burglary of those premises. The value of property the subject of dishonesty offences is relevant as noted by this Court in Clarke v Director of Public Prosecutions [2012] ACTCA 7 at [8].
In addition, while it is not an error to impose the same sentence for each of the series of the same offences, notwithstanding that each subsequent offence is committed in the context of the fact of the earlier offending, as was noted in R v Thorn, the overall sentence must reflect the total of the criminality.
Having taken all these matters into account, I am not satisfied that the individual sentences were manifestly excessive or that the overall sentence was, having regard to the totality of the criminality, manifestly excessive.
In my view the complaint that the sentence was manifestly excessive has not been made out. Conclusion
Even though error was shown, in my view, in the failure of the learned sentencing judge in finding that Mr Fusimalohi was remorseful, I do not consider that any different sentence should be imposed.
I would dismiss the appeal. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Refshauge.

In support of this ground the appellant referred us to four decisions of this Court. In R v Thorn [2010] ACTCA 10 (Thorn), the offender was sentenced to an aggregate term of imprisonment of four years six months imprisonment, partly suspended, for a lengthy series of offences of dishonesty, including numerous burglaries and thefts. A Crown appeal against the adequacy of sentences imposed was unsuccessful. We do not think this case assists the appellant. It is clear that the offender in Thorn had significant mental health issues. In rejecting the Crown appeal, the Court referred to the offender’s mental illness as a circumstance which rendered general deterrence of less significance than would otherwise have been the case. The appellant has no history of mental illness, so that one cannot compare the sentences imposed on the appellant with those imposed in Thorn.
The second case referred to by the appellant was Love v The Queen [2012] ACTCA 8 (Love), where this Court found an aggregate sentence of five years imprisonment, with a non-parole period of three and a half years, for numerous offences of burglary and theft was manifestly excessive, and reduced the aggregate sentence to one of four years imprisonment, with a non-parole period of two years three months. An examination of the circumstances of the offender in Love reveals why this course was adopted, and why it cannot be used as a comparator with the sentence imposed on the appellant. The offender in Love was a young man when he committed the offences for which he was sentenced, those having occurred when he was 21 years old, compared with the appellant who was between 26 and 27 years old at the time of his offending. In addition, the evidence established that the offender in Love had a childhood and adolescence characterised by deprivation and abuse, including sexual abuse, resulting in him being exposed to drug abuse from an early age. In contrast the appellant appears to have had a settled childhood, and only began using hard drugs as an adult. These significant differences mean that the sentences imposed in Love cannot be used as a yardstick in determining whether the sentences imposed on the appellant are manifestly excessive.
The third case the appellant referred us to was Richards v The Queen [2012] ACTCA 10 (Richards), where the offender’s sentence of three years two months imprisonment for an offence of burglary was reduced to two years on appeal. The sentence imposed on appeal is not inconsistent with the sentences imposed by the learned sentencing judge for the burglary offences committed by the appellant. In addition, one of the circumstances that moved the Court to reduce the sentence for burglary in Richards was the impairment of the offender’s judgment by reason of serious physical injury at the time of the offence.
The final case to which we were referred is EG v The Queen [2012] ACTCA 17 (EG), where this Court found sentences of one year and seven months imprisonment for offences of burglary, and two years and four months imprisonment for aggravated burglary to be excessive. Sentences of 12 months imprisonment and 18 months imprisonment respectively were substituted. The offender in that matter had no relevant prior adult criminal history and was only 20 years old at the time of offending. His rehabilitation prospects were considered to be good. Not only is the appellant older than the offender in EG, he also has a prior criminal history of similar serious offences.
None of these cases suggest that the sentences imposed upon the appellant, either individually or in aggregate, are manifestly excessive. These cases simply underline the proposition that there is no single, correct sentence for offences of burglary and aggravated burglary. There will always be a range of sentences that may legitimately be imposed for any particular offence of this type, taking into account the characteristics of the offence and the offender. The fact that other offenders have received more lenient sentences than the appellant for similar offences does not mean that the sentences imposed on the appellant are manifestly excessive. As Johnson J, with whom James J agreed, said in RR v The Queen [2011] NSWCCA 235 at [152]:

Fusimalohi v R [2012] ACTCA 49

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