R v Capalbo No. DCCRM-03-223 - [2004] SADC 51

Eugenio Peter Capalbo
[2004] SADC 51
Judge David Smith
Criminal

Eugenio Peter Capalbo has pleaded guilty to no less than 47 offences.
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.
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.
I turn to the details of the bond which is the appropriate starting place.
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.
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.
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
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
I have…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] SADC 51
Decision Date: 12 March 2004

CaseChat Overview and Summary

In the case of R v Capalbo, the defendant, Eugenio Peter Capalbo, faced the District Court of South Australia for multiple criminal offences. Capalbo had pleaded guilty to a significant number of charges, including criminal trespass, larceny, receiving, and illegal interference, among others. These offences were committed in January 2002 at Largs Bay and Fulham and led to a breach of a previously imposed good behaviour bond from the Magistrates Court. The court also considered numerous other outstanding offences that breached the same bond. The primary legal issues revolved around the appropriate sentencing for these repeated breaches of the good behaviour bond and the cumulative effect of the defendant's extensive criminal history, which included over 40 offences during the bond period.

The court meticulously evaluated the circumstances of the offending and the background of the defendant. It was noted that Capalbo had a history of drug abuse, which was exacerbated by recent revelations of childhood sexual abuse, leading to a current state of crisis. Despite this, the court considered the defendant's pleas of guilty and the time already spent in custody. The judge took into account the significant aggravating factor of the defendant committing the bulk of these offences while on a good behaviour bond. The court also considered the defendant's potential risk of re-offending due to his current mental health issues.

Ultimately, the court imposed a global penalty of imprisonment, taking into account the totality principle and the specific penalties prescribed by law for each offence. After applying the appropriate discounts for the guilty pleas and time already spent in custody, the court determined an 11-year imprisonment term. The court further adjusted this term to account for the previous sentences and the breaches of the good behaviour bond, resulting in a final head sentence of 10 years and 7 months. The non-parole period was set at 6 years, also backdated to the date of the defendant's initial custody. Additionally, Capalbo was ordered to pay fines totalling $1,800 and was disqualified from holding or obtaining a driver’s licence for 2 years, starting from the date of his parole.

Orders