R v Rasmussen ex parte A-G (Qld)

SUPREME COURT OF QUEENSLAND

CITATION:

R v Rasmussen ex parte A-G (Qld) [2000] QCA 494

PARTIES:

R
v
RASMUSSEN, Grant Peter
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 288 of 1999
MC No PA3742-64 of 1999
MC No PA3840-48 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Criminal

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

1 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6 October 2000

JUDGES:

McMurdo P, Pincus JA, Mackenzie J
Separate reasons for judgment of each member of the court, each concurring as to the order made

ORDER:

The matter is remitted to the Magistrates Court to be dealt with according to law.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – OTHER CIRCUMSTANCES OF INTERFERENCE – Breach of intensive correction order imposed by the Court of Appeal – Magistrate remitted matter to Court of Appeal - whether Magistrate had power to deal with breach – whether the substituted or varied sentence imposed by the Court of Appeal becomes the sentence of the primary court for the purposes of Division 2 of Part 7 of the Penalties and Sentences Act 1992

Criminal Code, s 668E(3), s 668(F), s 669A
Offenders Probation & Parole Act 1959, s 10
Penalties and Sentences Act 1992, s 4, s 7, s 8, s 25, s 29, s 123, s 125, s 125(2), s 125(4)(a), s 125(4)(b), s 126, s 144
Supreme Court of Queensland Act 1991, s 16, s 29, s 34

Borthwick v The Elderslie Steamship Company [1905] KB 516, referred to
Hancock v Prison Commissioners (1960) 1 QB 117, applied
Poulton v Welling Appeal No 473 of 1994, 5 May 1995, referred to
R v Cornale [1993] 2 QdR 294, referred to
S v Recorder of Manchester (1971) AC 481, considered
The Queen v Jerome & McMahon (1964) 1 QdR 603, applied

COUNSEL:

C Chowdhury for the respondent
D Meredith for the appellant

SOLICITORS:

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

1. McMURDO P: This matter first came before the Court of Appeal on 14 March 2000 as an Attorney-General's appeal against a sentence imposed upon Rasmussen in the Toowoomba Magistrates Court. On 24 March 2000, the Court allowed the appeal against sentence, set aside the sentence imposed in the Magistrates Court and instead sentenced Rasmussen to a term of imprisonment of one year to be served by way of an intensive correction order on the usual conditions set out in s 114 Penalties and Sentences Act 1992 ("the Act") and with additional conditions involving restitution and residential requirements.

1. Rasmussen was brought before the Magistrates Court at Toowoomba on 2 June 2000 for breach of that intensive correction order and for other matters.  As the intensive correction order was imposed by the Court of Appeal, the magistrate queried whether he had power…