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R v Kapitano

R v Kapitano

Case [2012] QCA 288 26 October 2012

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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

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.
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.
ATKINSON…

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 Kapitano

Details

AGLC: R v Kapitano [2012] QCA 288
Case: [2012] QCA 288
Decision Date: 26 October 2012

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

Full text does not contain this section.

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

Full text does not contain this section.

Citations

AGLC Citation

R v Kapitano [2012] QCA 288

Most Recent Citation

R v Lotoaniui [2013] QCA 71

Cases citing this decision · 5 of 5 shown

R v Melrose
[2016] QCA 202

…[2010] QCA 25, cited R v Host [2015] WASCA 23, considered R v Kapitano [2012] QCA 288, cited R v Kertebani [2010] NSWCCA 221, cited R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited R v Massey [2015] QCA 254, considered R v Phillips & Woolgrove (2008) 188 A Crim R 133; [2008] QCA 284, cited R v Suarez [2012]…
R v Herbert
[2014] QCA 83 Para 1

…which he was being sentenced. The court regarded this sentence as being manifestly excessive and substituted a sentence of 10 years imprisonment. [5][2012] QCA 288.…
Moss v Queensland Police Service
[2014] QDC 15 Para 1

…In R v Kapitano [2012] QCA 288 at [46], it was observed by the Court of Appeal that section 9(2)(1) of the Penalties and Sentences Act 1992 expressly requires the consideration of “sentences already imposed on the offender that have not been served” in arriving at an appropriate sentence. While it is clear that t…
R v Lotoaniui
[2013] QCA 71 Para 1

…and not manifestly excessive. It was supported by this Court's decisions in R v Tilley; ex parte A-G [6] and R v Kapitano .[7] [6][2002] QCA 144. [7][2012] QCA 288.…
Soanes v Commissioner of Police
[2013] QDC 26 Para 1

…quired by s9 of the PSA , requires an approach which has proper regard to the effect of any sentence to be imposed.[3] [2]E.g. see R v Kapitano [2012] QCA 288, at [46] – [52]. [3] R v McDougall & Collas [2006] QCA 365 at [15]-[18]; and R v Meerdink [2010] QCA 273 at [33]–[37].…

View all 5 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Cowie
[2005] QCA 223 Para 14

…order to fulfil the purpose of sentencing which is prescribed by s 9(1), consistently with what was said in Shillingsworth and Herford .” [16][2005] QCA 223 at [19].…
Markarian v The Queen
[2005] HCA 25

…ve 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 [2…
R v King
[2003] NSWCCA 352 Para 6

…st the offender is unlawfully at large” should notionally be added to the table in Ponfield .” [7](1999) 45 NSWLR 327 at [48]. [8][2003] NSWCCA 352.…
R v Styles
[2003] QCA 374 Para 36

…r in that case was considerably younger and not affected by the lengthy criminal history with which the applicant in this case has to contend. [1][2003] QCA 374.…
R v Brown
[2003] QCA 372 Para 2

…ositive activities while in custody. Brown, like the current applicant, cooperated with police and expressed remorse through letters of apology. [4][2003] QCA 372.…
R v Rose
[2002] QCA 134 Para 3

…d that “[i]t is something of a wonder that he was able to commit so many offences because most of his time since 1992 has been spent in gaol.” [5][2002] QCA 134.…
R v Keating
[2002] QCA 19 Para 37

…s appeal except that they show that the court should have regard in imposing sentence to the overall term of imprisonment which will be served.[3] [2][2002] QCA 19. [3][2002] QCA 19 at p 10.…
Wong v The Queen
[2001] HCA 64

…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) f…
R v Shillingsworth
[2001] QCA 172

…2, 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; [19…
R v Matthewson
[2001] QCA 4 Para 4

…applicant, involving stealing, unlawful use of a motor vehicle, and other offences that were committed predominantly over the course of one year. [6][2001] QCA 4.…
R v Ponfield
[1999] NSWCCA 435

…sidered 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 f…
R v Booth
[1999] QCA 100

…(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…
Mill v The Queen
[1988] HCA 70

…992 (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 […

Legislation cited in this decision · 2

Penalties and Sentences Act 1992 (Qld)
9(2)(l) 2 mentions (from Para 8)
Penalties and Sentences (Serious Violent Offences) Amendment Act 1997 (Qld)
8 1 mention (from Para 10)

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