R v Capalbo

Case [2005] SASC 47

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v CAPALBO

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Besanko and The Honourable Justice White)

10 February 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERAL PRINCIPLES

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE - SENTENCES ON TWO OR MORE COUNTS

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - FINES

Appellant was sentenced in the District Court for 47 offences, mainly dishonesty offences - Appellant was sentenced to a single term of imprisonment of 10 years, one month and 15 days in respect of 33 of the offences - That term of imprisonment was cumulative upon the unserved portion of an existing sentence, being five months and 19 days - Non-parole period of six years was set - Driver's licence disqualifications were imposed, to commence on date appellant released on parole - In determining sentence of imprisonment, sentencing Judge identified notional sentences for each offence - Appeal is against single sentence rather than notional sentences, as notional sentences have not been "passed" - Judge erred in failing to identify whether notional sentences would have been made cumulative or concurrent - Judge erred in imposing fines when no real prospect of payment by appellant - Judge erred in ordering driver's licence disqualification to begin on uncertain day - Order that appellant be disqualified from driving after release on parole was oppressive - Sentencing remarks adequate given complexity of sentencing - Appeal allowed - Remitted to District Court for re-sentencing.

Criminal Law (Sentencing) Act 1988, s 13, s 18A, s 19, s 57; Criminal Law Consolidation Act 1935, s 86A, s 131, s 170, s 195, s 196, s 235, s 270A, s 352, s 353; District Court Act 1991, s 43; Magistrates Court Act 1991, s 42; Second-Hand Dealers and Pawn Brokers Act 1996, s 20; Australian Road Rules r 20, r 215; Road Traffic Act 1961, s 42, s 168, s 169A; Motor Vehicles Act 1959, s 91; Summary Offences Act 1953, s 38, s 74A, s 141; Bail Act 1985, s 17, referred to.
R v Gibbs [2004] SASC 187; (2004) 89 SASR 30; Police v Nowak [2000] SASC 82; (2000) 76 SASR 551, applied.
Valenzuela v Police (1998) 70 SASR 275, not followed.
R v Major (1998) 70 SASR 488, discussed.
R v Allen [2002] SASC 98; (2002) 81 SASR 434; R v Simpson [2004] SASC 307; Hermel v Police [2000] SASC 34; (2000) 76 SASR 336; R v Gale [1999] SASC 309; (1999) 74 SASR 235; R v Tu [2001] SASC 395; (2001) 216 LSJS 297; R v Kelly

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AGLC
R v Capalbo [2005] SASC 47
Case
[2005] SASC 47
Decision Date

CaseChat Overview and Summary

In the case of R v Capalbo, the appellant appealed against his sentence imposed by the District Court, which had convicted him of 47 offences, predominantly involving dishonesty. The sentence included a cumulative term of imprisonment of 10 years, one month and 15 days for 33 of the offences, in addition to an existing unserved sentence of five months and 19 days. The non-parole period was set at six years, and the appellant faced driver's licence disqualifications upon release on parole. The appeal contested the sentence's legality on several grounds, including the failure of the sentencing judge to clarify whether the notional sentences would be cumulative or concurrent, the imposition of fines without a realistic prospect of payment, and the inappropriate timing of the driver's licence disqualification.

The court considered whether the appeal was correctly brought to the single judge or the Full Court, referencing previous cases on the matter. Despite the legal debate, the court proceeded to address the merits of the appeal. It found that the sentencing judge erred in not specifying whether the notional sentences were to be cumulative or concurrent, did not consider the appellant's ability to pay the imposed fines, and set the commencement of the driver's licence disqualification on an uncertain day. The court also noted that while the sentencing remarks were adequate given the complexity of the sentencing, the cumulative sentence and the driver's licence disqualification were oppressive. Consequently, the appeal was allowed, and the case was remitted to the District Court for re-sentencing.

The court's decision highlights the importance of clear sentencing directions and the need to consider the individual circumstances of the offender. The sentencing judge's failure to address the cumulative nature of the sentences, the impracticality of imposing fines, and the timing of the driver's licence disqualification were significant errors. The final orders of the court were to allow the appeal and remit the case back to the District Court for a new sentencing hearing that properly addresses these issues.

Orders

Orders of the court

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Background

Background to the litigation

It was suggested in R v Allen [2002] SASC 98; (2002) 81 SASR 434 that an appeal against sentences imposed by the District Court for offences referred to it for sentencing from the Magistrates Court lay as of right pursuant to s 42 of the Magistrates Court Act 1991 to a single judge of this Court. On the other hand, in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30, Perry J, with whom Mullighan J was in general agreement, considered that in respect of offences charged other than on information, the appeal lay by right to the Full Court pursuant to s 43 of the District Court Act 1991. Doyle CJ was not prepared to depart from the position determined in R v Allen without hearing full argument. This was also the approach adopted by Gray J (with whom Nyland J agreed) in R v Simpson [2004] SASC 307. In the circumstances of this case where leave to appeal to this Court has, in any event, been granted on all grounds, it is not necessary to address this issue. It is plain however that this is an issue which warrants prompt attention by the Parliament.[1][1]Cf the statements to this effect by Doyle CJ and Mullighan J in R v Gibbs [2004] SASC 187; (2004) 89 SASR 30 at 33 [11] and 48 [135] and by Gray J in R v Simpson [2004] SASC 307 at [51].The Appellant’s Background The appellant was 35 at the time he was sentenced. He was born in Italy and migrated to Australia with his family in 1972, when he was three. The appellant left school at age 15 during the course of his Year 10. He worked for about 12 months with VIP Lawn Mowing. In 1985 he was involved in a serious car accident as a result of which he lost one leg. This led to a period of two years rehabilitation in which he learnt to manage using a prosthesis. Following that time, he worked for a period of approximately 12 months as a maintenance worker and following that as a dismantler. He has had work of a like kind with two further employers. However, since 1991 he has been unemployed. At the time of sentencing, the appellant had a girlfriend with whom he had had a relationship for approximately four years. There is one child from that relationship, now aged about two years. The appellant has a long history of illicit drug use. At one stage he had an addiction to heroin. The sentencing judge accepted that the appellant’s drug abuse has contributed to a long history of serious offending. The sentencing Judge described the appellant’s antecedent record as “forbidding”. The appellant has a history of repeated offending extending back to 1984. He has had multiple prior court appearances for offences involving dishonesty, offences related to illicit drugs and offences relating to the use of motor vehicles. In addition the appellant has, several times, not complied with the terms of a bond or with the terms of a bail agreement. The appellant has served lengthy terms of imprisonment in the recent past. On 11 August 1997, the appellant appeared in the Magistrates Court for offences of larceny, false pretences and unlawful possession and was sentenced to imprisonment for 46 months and 18 days with a non-parole period of 32 months. On 7 September 2001, the appellant was sentenced in the Adelaide Magistrates Court for one count of larceny. A head sentence of seven months and 19 days imprisonment was imposed but with provision for that sentence to be suspended after the appellant had served two months upon him entering into a bond to be of good behaviour for 12 months. That bond (entered into on 18 October 2001) was still current at the time the appellant committed 41 of the 47 offences for which he was sentenced in the District Court. In fact, five of the offences for which he was sentenced by the District Court Judge had been committed before the end of October 2001 despite the appellant having been released from custody only on 18 October 2001.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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