Fusimalohi v R [2012] ACTCA 49

Fusimalohi v R [2012] ACTCA 49 - ACTCA 2012 case summary — Zoe

[84]

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because it had prevented the defendant from disputing those facts, or considering whether his guilty plea should be withdrawn.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.

[162]

(1) Burglary committed on 23 April 2007, charge case 2009/557: imprisonment for two years four months, from 26 June 2010 to 25 October 2012;

(2) Theft committed on 23 April 2007, charge case 2009/2060: imprisonment for one year seven months, from 26 June 2010 to 25 January 2012;

(3) Theft committed on 23 April 2007, charge case 2009/2061: imprisonment for one year seven months, from 26 June 2010 to 25 January 2012;

(4) Burglary committed on 28 April 2007, charge case 2007/7576: imprisonment for two years four months, from 26 March 2011 to 25 July 2013;

(5) Theft committed on 28 April 2007, charge case 2007/7577: imprisonment for one year seven months, from 26 March 2011 to 25 October 2012;

(6) Burglary committed on 7 May 2007, charge case 2007/7578: imprisonment for two years four months, from 26 December 2011 to 25 April 2014;

(7) Theft committed on 7 May 2007, charge case 2007/7579: imprisonment for one year seven months, from 26 December 2011 to 25 July 2012;

(8) Burglary committed on 13 July 2007, charge case 2007/8283: imprisonment for two years four months, from 26 September 2012 to 25 January 2015;

(9) Theft committed on 13 July 2007, charge case 2007/8284: imprisonment for one year seven months, from 26 September 2012 to 25 April 2014;

(10) Burglary committed on 18 May 2007, charge case 2008/2838: imprisonment for two years four months, from 26 June 2013 to 25 October 2015;

(11) Theft committed on 18 May 2007, charge case 2007/9459: imprisonment for one year seven months, from 26 June 2013 to 25 January 2015;

(12) Burglary committed on 28 May 2007, charge case 2007/9460: imprisonment for two years four months, from 26 March 2014 to 25 July 2016;

(13) Theft committed on 28 May 2007, charge case 2007/9691: imprisonment for one year seven months, from 26 March 2014 to 25 October 2015;

(14) Aggravated burglary committed on 2 February 2008, charge case 2008/1618: imprisonment for two years nine months, from 26 January 2015 to 25 October 2017;

(15) Theft committed on 2 February 2008, charge case 2008/1619: imprisonment for one year seven months, from 26 January 2015 to 26 August 2016;

(16) Possessing housebreaking articles on 2 February 2008, charge case 2008/1620: imprisonment for nine months, from 26 January 2015 to 25 October 2015.

At a glance

Court

Decision date

Source

Judgment (162 paragraphs)

Fusimalohi v R [2012] ACTCA 49 (12 December 2012)

Parties

Legislation Cited (3)

Cases Cited (14)