R v Kapitano

Case [2012] QCA 288


SUPREME COURT OF QUEENSLAND

CITATION:

R v Kapitano [2012] QCA 288

PARTIES:

R
v
KAPITANO, Darren Glen
(applicant)

FILE NO/S:

CA No 176 of 2012
DC No 480 of 2011
DC No 237 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

26 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

18 October 2012

JUDGES:

Holmes and Fraser JJA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

1.  Application for leave to appeal against sentence granted.

2.  Appeal allowed to the extent of substituting a sentence of 10 years imprisonment on each of counts one to six for the sentence of 12 years imprisonment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant sentenced to 12 years imprisonment for three counts of armed robbery and three counts of attempted armed robbery – where applicant had extensive criminal record – where applicant pleaded guilty – where offences committed whilst at large – where applicant will have to serve another two years and two months on sentence from which he absconded – where applicant was a heroin addict who had undergone rehabilitation and who had actively assisted in the rehabilitation of others – whether the sentence imposed was manifestly excessive in all the circumstances

Penalties and Sentences Act 1992 (Qld), s 9(2)(l), s 156A

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Booth [2001] 1 Qd R 393; [1999] QCA 100, not followed
R v Brown[2003] QCA 372, considered
R v Cowie [2005] 2 Qd R 533; [2005] QCA 223, considered
R v Keating [2002] QCA 19, considered
R v King [2003] NSWCCA 352, considered
R v Matthewson [2001] QCA 4, considered
R v Rose [2002] QCA 134, considered
R v Shillingsworth [2002] 1 Qd R 527; [2001] QCA 172, considered
R v Styles [2003] QCA 374, considered
Re Attorney-General’s Application [No 1] under s 26 of the Criminal Procedure Act (R v Ponfield) (1999) 48 NSWLR 327; [1999] NSWCCA 435, considered
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, cited

COUNSEL:

S R Lewis for the applicant
B G Campbell for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. HOLMES JA:  I have read the reasons for judgment of Atkinson J and agree that the sentence of 12 years imprisonment was, in the circumstances of this case, manifestly excessive.  I agree with the orders her Honour proposes.

  2. FRASER JA: I have had the advantage of reading the reasons for judgment of Atkinson J.  I agree with those reasons and with the orders proposed by her Honour. 

  3. ATKINSON…

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Details
AGLC
R v Kapitano [2012] QCA 288
Case
[2012] QCA 288
Decision Date

CaseChat Overview and Summary

The case of R v Kapitano involved the applicant, who was sentenced to 12 years imprisonment for three counts of armed robbery and three counts of attempted armed robbery. The applicant had an extensive criminal record, pleaded guilty, and committed the offences while at large. He had two years and two months left to serve on a separate New South Wales sentence after the current sentence. The applicant, a heroin addict who had undergone rehabilitation and assisted others in their rehabilitation, did not commit the offences in company, disguised, or using actual violence. The applicant sought to appeal the sentence, arguing it was manifestly excessive.

The legal issues before the court were whether the sentence imposed was manifestly excessive or inadequate, taking into account the cumulative sentence which would follow it, the mitigating factors in the applicant's favour, and the overall circumstances of the case. The court considered the appropriate sentence for the type of offending by an offender with the applicant's criminal record and mitigating factors.

The court found that, considering the cumulative sentence, the mitigating factors in the applicant's favour, and the overall circumstances, the appropriate sentence would have been 10 years imprisonment. The court held that the 12-year sentence imposed was manifestly excessive. Consequently, the court granted the application for leave to appeal the sentences imposed on counts one to six on the indictment and allowed the appeal to the extent of substituting a sentence of 10 years imprisonment on each of counts one to six for the sentence of 12 years imprisonment.

ORDERS:

1. Application for leave to appeal against sentence granted.
2. Appeal allowed to the extent of substituting a sentence of 10 years imprisonment on each of counts one to six for the sentence of 12 years imprisonment.

Orders

Orders of the court

1. Application for leave to appeal against sentence granted.

2. Appeal allowed to the extent of substituting a sentence of 10 years imprisonment on each of counts one to six for the sentence of 12 years imprisonment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It must follow that, despite the observations made specifically in relation to the operation of s 156A in Booth, the sentence imposed must have regard to the fact that the applicant has two years and two months left to serve on a sentence in New South Wales once the current sentence has been served. It is therefore necessary to consider what sentence would be just in all the circumstances given the cumulative sentence which will necessarily follow it.Conclusion It appears from the comparative sentences referred to above that the appropriate sentence for offending of this type by an offender with the applicant’s unenviable criminal record whilst at large but who nevertheless has all of the mitigating factors in his favour including a plea of guilty on an ex officio indictment, being a heroin addict who had undergone rehabilitation and who had actively assisted in the rehabilitation of others and who did not commit the offences in company or disguised and who did not use actual violence and who will have to serve another two years and two months imprisonment cumulatively would have been 10 years imprisonment. It follows that the sentence imposed of 12 years was manifestly excessive. I would grant the application for leave to appeal the sentences imposed on counts one to six on the indictment, allow the appeal only to the extent of substituting a sentence of 10 years imprisonment on each of counts one to six for the sentence of 12 years imprisonment.

Ratio Decidendi

Legal Principle Established

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