R v Dinaro - [1997] QCA 358

IN THE COURT OF APPEAL	[1997] QCA 358
SUPREME COURT OF QUEENSLAND

C.A. No.323 of 1997

Brisbane

[R v. Dinaro]

T H E Q U E E N

FRANK DINARO

(Applicant) Appellant
Williams J
Lee J
Cullinane J

Judgment delivered 21 October 1997
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL AGAINST SENTENCE ALLOWED. SET ASIDE SENTENCE BELOW ONLY TO EXTENT OF RECOMMENDING THAT THE APPLICANT BE CONSIDERED FOR PAROLE ON 23 SEPTEMBER 2001.

CATCHWORDS: CRIMINAL LAW - SENTENCE - Cumulative sentences - recommendation for parole - effect of period on parole before sentenced for later offences

R. v. Kiripatea [1991] 2 Qd R 686
S.185, s.190 Corrective Services Act 1988

Counsel:	Mr A Rafter for the applicant/appellant Mr P Ridgway for the respondent
Solicitor:	Legal Aid Queensland for the applicant/appellant Director of Public Prosecutions (Queensland) for the respondent
Hearing Date:	7 October 1997
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21 October 1997

This is an application for leave to appeal against sentence. The applicant was convicted on his plea of guilty on 28 August 1997 in the District Court at Southport of one count of armed robbery in company with actual violence committed on 8 June 1996. He was sentenced on the same date to nine years imprisonment, to be served cumulatively with other terms of imprisonment he was then serving. This approach accorded with the Court of Appeal decision in R v Cutajar (1995) 85 A Crim R 280. Also on that same date, a recommendation was made that the applicant be considered for release on parole on 23 September 2003.

Notwithstanding that this sentence and recommendation were agreed to by the applicant’s counsel before the learned sentencing judge, this application is made on the ground that the sentence is manifestly excessive. It was submitted inter alia that because of mitigating features such as the early plea of guilty, willingness to cooperate with the police in another investigation, the robbery was committed to fund his heroin addiction, and his history and remorse, a sentence of seven years should have been imposed with a recommendation for parole on 24 June 2000. It was further said that insufficient consideration was given to the totality principle and in particular to the approach expounded by the Court of Criminal Appeal in R v Kiripatea [1991] 2 Qd R 686.

The chronology is somewhat convoluted and difficult to follow. The other terms of imprisonment which the applicant was already serving arose out of proceedings on 24 March 1992 when the applicant, who was born on 5 September 1965 and was then aged 26 years, was sentenced in the District Court at Brisbane to a total of nine and a half years imprisonment for three offences of armed robbery in company with actual violence, and an offence of unlawful use of a motor vehicle all committed between June and August 1991. That sentence would in the ordinary course have expired on 24 September 2001. A recommendation…

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.

Continue reading R v Dinaro

Details

AGLC: R v Dinaro [1997] QCA 358
Case: [1997] QCA 358
Decision Date: 21/10/1997

CaseChat Overview and Summary

The applicant, Frank Dinaro, appealed against his sentence for armed robbery committed while on parole. The District Court sentenced him to nine years imprisonment, to be served cumulatively with his existing sentences. The appeal focused on the appropriateness of the nine-year sentence and the parole recommendation date of 23 September 2003. Dinaro argued that the sentence was manifestly excessive given his early guilty plea, cooperation with police, and his addiction to heroin, which motivated the robbery. The Crown contended that the sentence was appropriate, considering Dinaro's extensive criminal history and the need for deterrence.

The Court of Appeal examined Dinaro's criminal history, which spanned over fifteen years, including multiple offences of violence and dishonesty. Despite mitigating factors such as his early guilty plea and efforts to cooperate with police, the Court considered the severity of the current offence and Dinaro's extensive criminal record. The Court noted that while the nine-year sentence was not excessive for the current offence, the lengthy deferral of the sentence and the parole recommendation date did not align with the principles set out in R v Kiripatea, which call for moderation when imposing cumulative sentences that are deferred for a lengthy period.

The Court found that the nine-year sentence was appropriate given the appellant's criminal history, but the parole recommendation date of 23 September 2003 was excessive. The Court set aside the parole recommendation and made a new recommendation for parole on 23 September 2001, meaning Dinaro must serve at least four more years in custody before becoming eligible for parole. The Court allowed the appeal and modified the parole recommendation date while maintaining the nine-year head sentence and the 39 days already served in presentence custody.

Orders