Burglars fail to have prison terms reduced
Justice Richard Refshauge. Photo: Richard Briggs
The ACT Court of Appeal has thrown out sentence challenges from two serial burglars whose separate crime sprees netted goods worth more than $100,000.
The court on Wednesday upheld lengthy sentences that acting Justice John Nield had imposed last year on Patrick Michael Tate and James Nelson Fusimalohi.
Both tried to argue that the punishment meted out was too harsh.
Justice John Nield. Photo: Andrew Sheargold
Tate is currently serving at least four years of a six-year sentence at the Alexander Maconochie Centre.
His blood was found on broken glass at the scene of four burglaries committed in September and October 2009.
Tate pleaded guilty to stealing property worth more than $31,000 from homes in Narrabundah, Braddon, Ainslie and Reid.
In May last year Justice Nield jailed Tate for six years, to serve at least four before being eligible for parole in April 2015.
The judge said Tate had "a long and varied criminal record", with 55 prior convictions in Queensland and Canberra courts.
The crimes ranged from burglary and theft to shoplifting, receiving stolen property and stealing cars.
"I think that it is obvious to say that he has learnt nothing from his earlier offending and the penalties imposed on him therefor,'' Justice Nield said in sentencing Tate.
Tate's lawyers said the penalty was excessive and out of line with sentences for other Canberra burglars.
Justice Richard Refshauge agreed with the prisoner's lawyers, saying the individual crimes were less serious than other examples and noting that Tate had "taken advantage of the opportunity to progress his rehabilitation to the extent of gaining employment".
The dissenting judge said he would have upheld the appeal and re-sentenced Tate, likely to 4½ years to serve at least two years and nine months.
The other judges, John Burns and Bruce Lander, disagreed.
They said Tate's argument about his prospects for rehabilitation "ignored a very important piece of evidence … his criminal history".
Fusimalohi is serving five years after pleading guilty to six offences of burglary, eight counts of theft, one charge of aggravated burglary and one offence of going equipped for theft.
His fingerprints were found in the burgled homes.
Property worth more than $74,876 was stolen between April 2007 and February 2008 - although some items were not given a value during the sentencing proceedings.
In June last year Justice Nield imposed a total sentence of seven years and four months' jail and set a non-parole period of five years.
The court heard that Fusimalohi had no real memory of the burglaries and had committed them in order to fuel his drug habit.
Fusimalohi had a long criminal history, having been convicted for 26 offences, including burglary, theft, and receiving stolen property.
The man prepared and filed the appeal himself.
He said the sentence was excessive and the judge had erred by finding the defendant lacked remorse.
All three judges disagreed.
Justice Refshauge said, apart from the remorse and the plea of guilty, there were few mitigating factors that would favour a more lenient sentence.
"Even though error was shown, in my view, in the failure of the learned sentencing judge in finding that Fusimalohi was remorseful, I do not consider that any different sentence should be imposed," Justice Refshauge wrote.