R v Fusimalohi [2015] ACTSC 220

CRIMINAL LAW - Sentence - property offences - attempted burglary - burglary and theft - multiple similar offences - rehabilitation - non-parole period

R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327

Legal Aid ACT (Offender)

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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 a large quantity of valuable jewellery and a laptop. The total value of the items was $62,409. He was later identified by fingerprint and other forensic evidence.

9. The offender was arrested on 2 February 2015. He has been custody since that date. The sentences will commence on 2 February 2015.

10. Although it is not a decision of this Court, the NSW guideline judgment of R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327 is useful when assessing the objective seriousness of an offence of burglary.

11. The offences do not involve particular aggravating features. They occurred in daylight hours when the owners of the residences in question were absent. Nevertheless, in each case, there was a violation of the privacy associated with a home. There is no evidence that the stolen items were of particular sentimental value. However, I infer that, at least some of the jewellery stolen during the last offence was of personal value to the owner. In addition, the total value of the items stolen during the second and last incidents was substantial. In relation to events three and four, the theft offences were of low objective seriousness; the value of the stolen items was $60 and $30 respectively.

12. The offender is now 32 years of age. He was 31 years of age at the time of the offences. He has a very long criminal history. The prosecutor calculated that there are approximately 93 offences on his criminal record of which about two thirds are matters of dishonesty, principally burglary and theft matters. In the course of his adult life, the offender has committed a large number of dishonesty offences, including many offences of burglary.

13. In 2001, for offences of burglary and theft, he received periodic detention orders. In 2004, for offences of burglary and other matters, he received an 18 month sentence of which he was to serve 12 months in full time custody. In 2006, he received a good behaviour order for trespass, but breached the good behaviour order. On 29 October 2007, in the ACT Supreme Court, Gray J sentenced the offender for many offences of burglary and theft to a total period of imprisonment of four years and three months, with a nonparole period of two years. The non-parole period expired in April 2009. In February 2011, the ACT Magistrates Court sentenced the offender to a total period of 30 months' imprisonment for many offences of dishonesty that had been committed in 2010. A new non-parole period was fixed, being 22 January 2013. Parole was breached, but the breach resulted only in a formal warning. On 2 July 2014, the offender completed the term of imprisonment in the community.

14. After he was released from custody in January 2013, the offender remained crime free for almost two years, until he began to commit the subject offences in November 2014. Between January 2013 and late 2014, the offender's general practitioner supervised the offender on methadone maintenance treatment. However, in September 2014, there was an attempt to transfer the offender's treatment from methadone to suboxone treatment. The purpose of the treatment change was to facilitate the offender's working arrangements; suboxone permits second daily dosing, as opposed to daily dosing with methadone. Unfortunately, there was a misunderstanding at the dosing pharmacy, and the offender was never stabilised on suboxone. At the time that he was attempting to change medication, the offender was subject to financial stress and, as a result, he relapsed into drug use.

15. I accept that the subject offences were committed after the offender relapsed. The nature of the offences is consistent with the offender being under the influence of drugs and desperate to obtain money to purchase drugs. The offences were unsophisticated. Despite his experience with the criminal law, the offender left fingerprint and other forensic evidence at the scene of each crime. The offender has little recollection of the circumstances surrounding the offences.

16. The offender received a stable but strict upbringing within a large Tongan family. His parents had migrated to Australia but the offender himself was born in Australia.

17. He was educated to a Year 9 standard, which is regrettable because it appears that the offender is a person of considerable resources who may have benefitted from a higher level of education. The offender's family was impoverished, which probably explains why the offender left school after Year 9.

18. The offender has a long history of unemployment or informal employment. He has been largely reliant on Centrelink benefits. However, he does have some history of employment. In these proceedings, a letter was tendered from a former employer who is in the building industry. He stated that the offender was an asset to his business, presenting excellent communication skills. The offender was reliable, punctual and showed great initiative with little direction. On his release from custody, the offender proposes to return to employment in the building industry.

19. The offender has been in a stable de facto relationship for a number of years and he continues to enjoy the support of his partner. She is not a drug user.

20. While in custody, the offender has been active and has engaged well with education programs. He has also been respectful.

21. The offender's greatest problem has been that he fell into drug abuse at an early age. The CADAS report states that the offender commenced alcohol and cannabis use at eight or nine years of age, opioid use at 11 years of age, and amphetamine use at 15 or 16 years of age. After he ceased methadone treatment in late 2014, the offender relapsed into daily use of cannabis, and he used opioids intravenously until he was arrested in early 2015.

22. In the past, the offender has received some treatment for drug dependency. Principally, this has been pharmacotherapy treatment, although the offender has also undertaken residential treatment. The offender told the CADAS reporter that his treatment goal was to be abstinent and that, "his biggest mistake last year was that he didn't ask for help when he needed it." The reporter noted that the offender understands that financial stress got the better of him, causing him to relapse into substance abuse and to begin living "a double life". I take the latter to be a reference to the offender living the lives of both a drug addict and a normal member of the community who was living in a de facto relationship and undertaking normal paid employment.

23. I am required to address the sentencing purposes in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). It is important to ensure that the offender is adequately punished in a way that is just and appropriate. General and personal deterrence are of some significance in this case, as is protection of the community. Accountability and denunciation are important considerations, as well as recognition of the harm done to the victims, particularly in relation to the two burglaries that involved the theft of property of substantial value. It is also important to promote the rehabilitation of the offender. He demonstrates reasonably good prospects of rehabilitation. If he is rehabilitated, that will provide the best protection for the community in the future.

24. I am also required to consider such of the matters in s 33 of the Sentencing Act as are relevant and known to the Court, as well as anything else that is relevant to the sentencing process. I have already referred to the nature and circumstances of the offences and to most of the other matters mentioned in s 33. The offender has expressed remorse and accepted responsibility for the offences. He has indicated willingness to voluntarily seek treatment for his addiction.

25. An offender with a long criminal history for like offences would ordinarily receive a non-parole period of at least 65% of the total term of imprisonment. A central purpose of a non-parole period is to enable an offender with good prospects of rehabilitation to embark upon rehabilitation in the community at an early stage. The prospect of rehabilitation is something that is generally more prominent in the case of young offenders and offenders with a shorter criminal history. The offender does not fit the normal pattern and it is my view that he does have good prospects of rehabilitation which should be recognised by fixing a shorter non-parole period.

26. There are a number of reasons for considering that the offender has good prospects of rehabilitation. In the period January 2013 to late 2014, he demonstrated that he could remain abstinent if appropriately supported by treatment and he demonstrated a willingness to maintain treatment. It is my impression that his resolve to pursue treatment has been reinforced by his incarceration in respect of these matters. His age is such that he has the maturity to reform. He has prospects of employment, and a personal relationship which will support him in his rehabilitation. He has undertaken programs in custody, and he is willing to pursue further programs, which will provide him with a good foundation to remain drug free when he re-enters the community. For these reasons I propose to impose a non-parole period of only 50% of the total term.

27. The sentences must be accumulated to adequately reflect the totality of the criminality involved. The five events occurred on separate days and involved separate victims. On the other hand, all the offences occurred within a period of one month. They were all of a very similar nature and could be regarded part of the same short spurt of criminal offending conduct which was the product of a relapse into drug abuse.

(a) For the offence of attempted burglary on 7 November 2014, I would have imposed 16 months' imprisonment but I have reduced that figure by 25% to 12 months' imprisonment, to be served from 2 February 2015 to 1 February 2016;

(b) For the offence of burglary on 19 November 2014, I would have imposed two and a half years' imprisonment but I have reduced that figure by 25% to 22 months' imprisonment, to be served from 2 June 2015 to 1 April 2017.

(c) For the related offence, I have reduced the sentence from two years' imprisonment to 18 months' imprisonment, to be served from 2 June 2015 to 1 December 2016;

(d) For the offence of burglary on 26 November 2014, I have reduced the sentence from two and a half years' imprisonment to 22 months' imprisonment, to be served from 2 December 2015 to 1 October 2017.

(e) For the related theft offence, I have reduced the sentence from four months' imprisonment to three months' imprisonment, to be served from 2 December 2015 to 1 March 2016;

(f) For the offence of burglary between 28 November 2014 and 3 December 2014, I have reduced the sentence from two and a half years' imprisonment to 22 months' imprisonment, to be served from 2 June 2016 to 1 April 2018.

(g) For the related minor theft offence, I have reduced the sentence from four months' imprisonment to three months' imprisonment, to be served from 2 June 2016 to 1 September 2016; and

(h) For the offence of burglary on 6 December 2014, I have reduced the sentence from two and a half years' imprisonment to 22 months' imprisonment, to be served from 2 December 2016 to 1 October 2018.

(i) For the related theft offence, I have reduced the sentence from two years' imprisonment to 18 months' imprisonment, to be served from 2 December 2016 to 1 June 2018.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Chief Justice Murrell.

29. The total sentence dates from 2 February 2015 to 1 October 2018, which is a period of three years and eight months. I impose a non-parole period of 22 months' imprisonment from 2 February 2015 to 1 December 2016. The offender is eligible for release to parole on 1 December 2016.