R v Kapitano

[2002] QCA 496

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kapitano [2002] QCA 496

PARTIES:

R
v
KAPITANO, Darren Glen
(applicant)

FILE NO/S:

CA No 196 of 2002
DC No 1673 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EXTEMPORE ON:

11 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2002

JUDGES:

McMurdo P, McPherson and Davies JJA
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

Application granted.  Appeal allowed.  Instead of the sentence of 13 years imposed on counts 10 and 14, substitute a sentence of 11 years’ imprisonment.  Offences are declared serious violent offences.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED – where sentence application –  where applicant cooperated with authorities – where other mitigating factors - whether sentence is manifestly excessive

Penalties and Sentences Act 1992 (Qld), s 13A, s135(2)(c)

R v Gladkowski (2000) 115 A Crim R 446, considered

COUNSEL:

A W Moynihan for the applicant
T A Fuller for the respondent

SOLICITORS:

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

THE PRESIDENT:  The applicant pleaded guilty on the 31st of May 2002 to an ex officio indictment, containing 10 counts of armed robbery, two counts of attempted armed robbery, two counts of armed robbery in company and one count of dangerous operation of a motor vehicle, with a circumstance of aggravation.  These offences occurred between 9 April and
14 May 2001. A schedule of offences on various dates, from November 2000 to May 2001, was also taken into account, under s 189 Penalties and Sentences Act 1992 (Qld), namely four counts of stealing, one count of receiving, one count of entering a dwelling house with intent, two counts of unlawful use of a motor vehicle, two counts of possession of tainted property, one count of possessing a dangerous drug and one count of failing to appear. On the 13th of June 2002, the applicant was sentenced to an effective term of imprisonment of 13 years. The applicant is therefore deemed to have been convicted of a serious violent offence, with the consequence under s 135(2)(c) Corrective Services Act, 2000 Queensland that he must serve 80 per cent of this period before eligibility for parole.

The offences contained in the indictment occurred as follows: the applicant over a five week period, robbed eight banks, five TAB franchises and one newsagency, primarily to finance a heroin addiction.  On each occasion, he was armed with a replica pistol, threatened his victims, was not disguised, but sometimes wore a baseball cap and sunglasses.  The applicant said he committed the offences in order to finance his own heroin addiction and that of his fiancée and that they were using between them, about $3,500 of heroin each day.

During two of the offences, he was in company…