R v Taputoro - [2007] QCA 29

SUPREME COURT OF QUEENSLAND

CITATION:

R v Taputoro [2007] QCA 29

PARTIES:

R
v
TAPUTORO, Tutua James
(appellant/applicant)

FILE NO/S:

CA No 271 of 2006
DC No 130 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Mt Isa

DELIVERED EX TEMPORE ON:

8 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2007

JUDGES:

McMurdo P, Keane JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused
3. Warrant to issue for the apprehension of the applicant; with the warrant to lie in the Registry for seven days

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - where applicant convicted of unlawful assault - where appeal against conviction dismissed on request of applicant's counsel - where applicant sentenced to six months imprisonment suspended after four months for an operational period of 12 months - where applicant employed as security staff - where judge considered need for deterrence - whether sentence manifestly excessive

R v Nuckey, unreported, CA No 95 of 1998, 22 June 1998, distinguished

COUNSEL:

P E Nolan for the applicant
R G Martin SC for the respondent

SOLICITORS:

Rod Madsen Solicitor for the applicant
Director of Public Prosecutions (Queensland) for the respondent

KEANE JA: On 21 September 2006, the applicant was convicted upon the verdict of a jury of one count of unlawful assault. He was acquitted of unlawful assault causing bodily harm in company and unlawful assault causing bodily harm. On 22 September 2006, he was sentenced to six months imprisonment suspended after four months for an operational period of 12 months. One day was declared as pre-sentence custody.

The applicant originally sought to appeal against his conviction. At the request of counsel for the applicant, that appeal was dismissed today. The applicant seeks leave to appeal against the sentence imposed on him on the ground that it is manifestly excessive.

The incident which led to the charges against the applicant occurred at Mount Isa. The complainant was Jason Emblen. At about 3.00 am on Sunday, 21 August 2005, Mr Emblen arrived at a nightclub in Mount Isa. He was drunk, and became involved in an argument with security staff at the nightclub. He threw a punch at one of the staff, who turned out to be the applicant's son. There is no suggestion that the applicant's son was actually injured.

Mr Emblen was ejected from the nightclub and was thrown down three or four steps at the entrance to the nightclub. There he was attacked by a number of people, who kicked and punched him while he was on the ground. A friend of his intervened and sought to take him to a taxi.

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 Taputoro

Details

AGLC: R v Taputoro [2007] QCA 29
Case: [2007] QCA 29
Decision Date: 8 February 2007

CaseChat Overview and Summary

The appeal in the matter of R v Taputoro involved the applicant, who had been convicted of unlawful assault. The applicant sought to appeal both against his conviction and sentence. The appeal against the conviction was dismissed at the request of the applicant's counsel. However, the application for leave to appeal against the sentence was refused. The applicant was sentenced to six months imprisonment, suspended after serving four months, with an operational period of 12 months. The applicant was employed as security staff at the time of sentencing.

The legal issues before the court centred on whether the sentence imposed was manifestly excessive, particularly given the applicant's employment as security staff and the judge's consideration of the need for deterrence. The court considered the appropriate factors to be taken into account when assessing the severity of a sentence, including the nature of the offence and the circumstances of the offender. The court distinguished the case from R v Nuckey, where the appeal against sentence was allowed due to the manifestly excessive nature of the sentence imposed.

In dismissing the application for leave to appeal against sentence, the court found that the sentence was not manifestly excessive. The court considered the need for general and specific deterrence, as well as the circumstances of the applicant, including his employment as security staff. The court found that the sentence imposed was appropriate and did not constitute an error of law. Consequently, the application for leave to appeal against sentence was refused, and a warrant was issued for the apprehension of the applicant, with the warrant to lie in the Registry for seven days.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

3. Warrant to issue for the apprehension of the applicant; with the warrant to lie in the Registry for seven days

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Taputoro [2007] QCA 29
PARTIES:	R v TAPUTORO, Tutua James (appellant/applicant)
FILE NO/S:	CA No 271 of 2006 DC No 130 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction & Sentence
ORIGINATING COURT:	District Court at Mt Isa
DELIVERED EX TEMPORE ON:	8 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	8 February 2007
JUDGES:	McMurdo P, Keane JA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction dismissed 2. Application for leave to appeal against sentence refused 3. Warrant to issue for the apprehension of the applicant; with the warrant to lie in the Registry for seven days
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - where applicant convicted of unlawful assault - where appeal against conviction dismissed on request of applicant's counsel - where applicant sentenced to six months imprisonment suspended after four months for an operational period of 12 months - where applicant employed as security staff - where judge considered need for deterrence - whether sentence manifestly excessive R v Nuckey, unreported, CA No 95 of 1998, 22 June 1998, distinguished
COUNSEL:	P E Nolan for the applicant R G Martin SC for the respondent
SOLICITORS:	Rod Madsen Solicitor for the applicant Director of Public Prosecutions (Queensland) for the respondent