R v Capalbo No. DCCRM-03-223

[2004] SADC 51

Eugenio Peter Capalbo
[2004] SADC 51

Judge David Smith
Criminal

1. Eugenio Peter Capalbo has pleaded guilty to no less than 47 offences. 

2. The defendant is before the District Court because he committed five offences at Largs Bay and Fulham in January 2002, being a criminal trespass offence, two offences of larceny and the offences of receiving and illegal interference.  These offences are particularised in Schedule 1 attached to these remarks.  They had the effect of breaching a Magistrates Court good behaviour bond.

3. The Court’s attention was drawn to numerous other outstanding Magistrates Court offences, some of which also breached the bond.  All these matters quite sensibly were then referred to this Court for sentence. 

4. I turn to the details of the bond which is the appropriate starting place.

5. For an offence of larceny committed on the 3^rd June 2000 the defendant, in the Adelaide Magistrates Court on the 19^th August 2001, was imprisoned for seven months and 19 days.  That term of imprisonment was suspended upon him completing two months imprisonment and then entering into a bond to be of good behaviour for a period of 12 months.  He entered into that bond upon completion of the two months imprisonment on the 18^th October 2001. 

6. Upon his release, the defendant was not of good behaviour.  During the 12 months of the good behaviour bond he committed no less than 41 offences which include the five offences mentioned in Schedule 1.  The defendant acknowledged his breaches of the bond in this Court on the 24^th September 2003.  Particulars of the Magistrates Court breaching offences are set out in Schedule 2 attached to these remarks.  Note this Schedule does not include those five offences in Schedule 1 which brought him to this Court.

7. Further, the defendant has admitted his guilt of a further six Magistrates Court offences which were committed at times other than within the period of the bond.  These six offences are particularised in Schedule 3 attached to these remarks.

   Circumstances of the Offending

8. The circumstances of the offences are set out not only in the apprehension reports and files forwarded from the various magistrates’ courts but also in the helpful schedule handed to me by the Crown.  Counsel for the defendant, Mr Longson, took no issue with the majority of the material.  I will not repeat it here, save that at the heart of the offending is the defendant’s long standing and sustained drug abuse.  Sexual assaults upon him when a child have recently surfaced in his memory.  This has led to a recent break down, and consequent therapy.  It has been suggested that this hitherto suppressed memory is the reason for his drug abuse.  The rationale is that the drug abuse serves to hide the pain of these sexual assaults.  Counsel, Mr Longson, put to me that now the root of all the pain has been recognised, the road to recovery can be embarked upon.  I accept that.

   Circumstances of the Offender

9. I have read and had taken into account the following material:

   ·his antecedent report;

   ·a psychological report by Dr Jack White dated 28 August 2003;

   ·two letters from the Department of Correctional services dated 9 March 2004 and 25 September 2003;

   ·a handwritten letter from the defendant dated 24 September 2003; and

   ·three Victim Impact Statements.

10. The defendant is 35 years old.  He was born in Cozensa, Italy and migrated to Australia with his parents in 1972.  His mother was and is a housewife and his father worked with General Motors.  He has two siblings, a brother and a sister, both whom are married with children.  He currently has a girlfriend called Kristy, whom he has been with for about four years.  There is a child called Jackie, who is about 1 year old.

11. The defendant left school in Year 10 to work.  He was then 15 years old.  He worked for about 12 months with VIP Lawnmowing but in 1985 he was involved in a tragic motor vehicle accident where he lost his leg.  This led to two years of rehabilitation where he learned to survive without his leg.  Following this time he worked for CMV Volvo for a period of 12 months as a maintenance worker and followed this as a dismantler.  He worked in this field with Parafield Auto and Just Magnas for 12 months each.  Since 1991 he has not been employed.  He has undertaken two TAFE courses with the prospect of working once released from custody. 

12. The defendant has taken many illicit drugs over the years and finally became addicted to heroin.  This has led to the majority of his offending.  The antecedent report is a forbidding 9 pages.  It chronicles repeated serious offending consisting broadly of dishonesty offences, driving offences and drug offences.  Counsel submitted that the fact that he has no serious drug offences confirms that he has been offending to feed his habit.  He further contended that it was noteworthy that the defendant had not graduated to the more serious producing or selling.  Thus, though it is a small mitigating matter, I accept that it can be said that the defendant, to use Mr Longson’s words, has “drawn a line in the sand” of what he will and will not do. 

13. Mr Longson submitted that there is no violence in his record.  I accept that.  Counsel also suggested that the defendant was as it were an opportunistic offender.  However, the dishonesty offences involving the alias “Peter Falzon” cannot be explained away in such an easy fashion.  These were premeditated offences.  He created a false identity for financial gain.

14. As indicated, the defendant has recently had a personal crisis regarding the discovery of his earlier sexual abuse.  He has been receiving therapy and treatment for this in gaol.  Perhaps when he emerges from the treatment he will be empowered to deal with his drug abuse so allowing him to make the remainder of his life a productive one.

    Sentencing considerations

15. The defendant is entitled to the full discount for his pleas of guilty.  I will give him approximately 25%. 

16. From time to time in the course of the offending he has been held in custody for periods, which I have ascertained from the letter written by Correctional Services dated 25 September 2003, to be a total of 10 months and 15 days.  I will take that into account. 

17. Finally, he has been in custody in relation to these matters continuously to date since the 12^th of February 2003.  Consequently, the term of imprisonment, which I am about to impose, will be backdated so as to commence on that date.

18. I note that victims of the defendant’s crimes have applied for compensation. Pursuant to s13 of the Criminal Law (Sentencing) Act, I am unable to order compensation because there is no real prospect of the defendant being able to comply with such an order.

19. It is a considerable aggravating circumstance that the defendant committed the bulk of these offences whilst on a good behaviour bond.

20. I note also Dr White’s view that because of his current mental health problems the defendant in his present state of crisis is at risk of re-offending.  In any event, for all this offending, a substantial term of immediate imprisonment is clearly indicated.

21. The offending as can be seen from the Schedules prescribes penalties including imprisonment, monetary fines and periods of licence disqualification. 

22. I intend imposing one global penalty of imprisonment for the offending for which terms of imprisonment are prescribed. 

23. All this is permissible pursuant to s18A of the Criminal Law (Sentencing) Act providing the total penalty does not exceed the total of the maximums prescribed.  Further, it is clear that any global penalty of imprisonment cannot be applied to an offence for which only a fine is prescribed (see Hermel v Police (2000) 76 SASR 336).

    Sentence

24. Before proceeding to the global or single penalty it is necessary to identify the process by which I arrive at it by fixing notional sentences for the individual offences as if s18A was not available (see R v Tu (2001) 216 LSJS 279 per Martin J at 300; R v Major (1998) 70 SASR 488; R v Gale (1999) 74 SASR 235). The notional penalties then are as follows:

No	Offence	Date	Imprisonment	Fine	Licence Disqualification
1	Criminal Trespass	11.01.02	2 years
2	Larceny	11.01.02	3 months
3	Receiving	9.01.02 - 12.01.02	6 months
4	Illegal Interference	11.01.02	3 months	1 year
5	Larceny	11.01.02	3 months
6	Receiving	26.10.01	6 months
7	False info to Second Hand Dealer	26.10.01	$200
8	False info to Second Hand Dealer	26.10.01	$200
9	False info to Second Hand Dealer	21.11.01	$200
10	False info to Second Hand Dealer	25.10.01	$200
11	False info to Second Hand Dealer	25.10.01	$200
12	False info to Second Hand Dealer	19.11.01	$200
13	Drive Disqualified	22.11.01	3 months
14	Drive without operating headlights	1.12.01	Convict without penalty
15	Fail to Truly Answer	1.12.01	Convict without penalty
16	Drive Disqualified	1.12.01	3 months
17	Attempted False Pretences	5.01.02	3 months
18	Illegal Interference	11.01.02	3 months	1 year
19	Larceny	11.01.02	3 months
20	Unlawful Possession	27.12.01 – 1.02/02	3 months
21	Unlawful Possession	27.12.01 – 1.02/02	3 months
22	False Pretences	27.12.01 – 1.02/02	3 months
23	False Pretences	27.12.01 – 1.02/02	3 months
24	Fraud	2.01.02	3 months
25	False Pretences	10.01.02	3 months
26	False Pretences	10.01.02	3 months
27	False Pretences	14.05.02	3 months
28	Forgery	14.05.02	2 years
29	False Pretences	15.05.02	3 months
30	Forgery	15.05.02	2 years
31	False Pretences	16.05.02	3 months
32	False Pretences	16.05.02	3 months
33	Forgery	22.05.02	2 years
34	False Pretences	25.05.02	3 months
35	Exceed Speed Limit	29.05.02	Convict without penalty
36	Fail to Truly Answer	29.05.02	Convict without penalty
37	Fail to Truly Answer	29.05.02	Convict without penalty
38	Produce False Evidence of Name	29.05.02	$200
39	Drive Disqualified	29.05.02	3 months
40	Unlawful Possession	14.06.02	3 months
41	Breach bail	14.06.02	1 month
42	Unlawful Possession	30.01.01	3 months
43	Receiving	29.01.01	6 months
44	False Info to Second Hand Dealer	29.01.01	$200
45	Receiving	23.02.01	6 months
46	False Info to Second Hand Dealer	23.02.01	$200
47	Drive Disqualified	27.05.01	2 years

1. In summary the totals are as follows:

   Provisional Imprisonment  17 years 10 months
   Fines  $1,800
   Licence Disqualification  2 years

2. I will deal firstly with the sentences of imprisonment.  The accumulation of the notional sentences, as can be seen, results in a total notional sentence of 17 years and 10 months.  As indicated, I allow a discount of 25% for the defendant’s pleas of guilty.  The result then is that the notional sentence is reduced to 13 years and 4 months. 

3. I note that to be added to the above sentence is the 5 months and 19 days imposed but suspended in the Magistrates Court on the 19^th August 2001. So taking into account that and applying the principles of totality, I fix, pursuant to s18A of the Criminal Law (Sentencing) Act, a single sentence for the above listed offences for which a term of imprisonment is prescribed, of 11 years imprisonment.

4. I turn now to the time in custody.  It is agreed, as I have indicated, that from time to time the defendant was in custody in respect of these matters a total of 10 months and 15 days and then from the 12^th February 2003 to date he has been in continuous custody.  Therefore I will deduct 10 months and 15 days from the sentence of 11 years.  The result is a head sentence of 10 years 1 month and 15 days.

5. I now turn to the bond granted in the Adelaide Magistrates Court on the 19^th August 2001 which was entered into by the defendant on the 18^th October 2001 and then breached by him.  I revoke the order which suspended the then remainder of the sentence, being 5 months and 19 days.  Accordingly, the defendant is to now serve the 5 months and 19 days.  That sentence is to be cumulative upon the above sentence of 10 years 1 month and 15 days.  The result is the final total head sentence which I fix at 10 years and 7 months. 

6. That head sentence will be backdated to commence on the 12^th February 2003.

7. As to fixing the non-parole period I acknowledge the glimmer of hope revealed in the papers and the submissions of counsel, Mr Longson.  Notwithstanding the defendant’s parlous history and apparently dismal prospects I fix a non-parole period of 6 years, which also is backdated to commence on the 12^th February 2003.  I point out in fixing the non-parole period that as in the case of the head sentence I have taken into account the 10 months and 15 days in custody. 

8. In respect of the offences for which I have imposed a fine I order that the defendant pay the fines totalling $1,800.  Finally, as indicated above, the defendant is disqualified from holding or obtaining a driver’s licence for 2 years which period is to commence to run as at the date the defendant is paroled in respect of the sentence I have just imposed.

   Summary

9. Accordingly, the order of the Court is:

   ·that the defendant be imprisoned for 10 years and 7 months with a non-parole period of 6 years, both the head sentence and the non-parole period to be backdated to commence on the 12^th February 2003;

   ·Defendant is to pay fines totalling $1,800

   ·Defendant is disqualified from holding or obtaining a driver’s licence for 2 years to commence on the date he is paroled.