R v TOOTELL, Trent John (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND (appellant)
FILE NO/S:
CA No 161 of 2012 DC No 30 of 2012
DIVISION:
Court of Appeal
PROCEEDING:
Sentence Appeal by A-G (Qld)
ORIGINATING COURT:
District Court at Maryborough
DELIVERED ON:
9 October 2012
DELIVERED AT:
Brisbane
HEARING DATE:
28 September 2012
JUDGES:
Holmes and Fraser JJA and Henry J Judgment of the Court
ORDERS:
1. The appeal is allowed.
2. The sentences are set aside.
3. On Count 1 the respondent is sentenced to two months imprisonment to be followed by 12 months probation with the requirements set out in s 93 of the Penalties and Sentences Act 1992.
4. On each of Counts 2 and 3 the respondent is sentenced to 14 months imprisonment to be suspended after he has served two months with an operational period of 20 months.
5. A warrant is to issue for the respondent’s arrest, to lie in the Registry for seven days before execution.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to three counts of unlawfully and indecently dealing with a child under the age of 16, with the aggravating circumstance that each child was under the age of 12 and in his care – where the respondent was employed at a child-care centre – where the respondent was sentenced to 14 months imprisonment on two counts, wholly suspended with an operational period for two years, and was placed on probation for 18 months on the third count – where the sentencing judge found that a combination of mitigating circumstances amounted to “exceptional circumstances” so as to take the matter outside the requirement in s 9(5) of the Penalties and Sentences Act that the respondent serve an actual term of imprisonment – where the Attorney-General appeals against that sentence on the grounds that the sentencing judge erred in finding there were exceptional circumstances and that the sentence was manifestly inadequate for offences committed while the respondent was in a position of trust and responsibility – whether the sentencing judge erred in his assessment of exceptional circumstances
[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.
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Details
AGLC
R v Tootell; ex parte A-G (Qld) [2012] QCA 273
Case
[2012] QCA 273
Decision Date
CaseChat Overview and Summary
The respondent in this case pleaded guilty to three counts of unlawfully and indecently dealing with a child under the age of 16, with the aggravating circumstance that each child was under the age of 12 and in his care. The respondent, who was employed at a child-care centre, was sentenced to 14 months imprisonment on two counts, wholly suspended with an operational period for two years, and was placed on probation for 18 months on the third count. The Attorney-General appealed against the sentence, arguing that the sentencing judge had erred in finding that there were exceptional circumstances and that the sentence was manifestly inadequate for offences committed while the respondent was in a position of trust and responsibility.
The court was required to decide whether the sentencing judge had erred in his assessment of exceptional circumstances. The court noted that the sentencing judge had found that a combination of mitigating circumstances amounted to “exceptional circumstances” so as to take the matter outside the requirement in s 9(5) of the Penalties and Sentences Act that the respondent serve an actual term of imprisonment. The court found that the sentencing judge had erred in his assessment of exceptional circumstances. The court noted that the respondent had breached the trust placed in him as an employee of a child-care centre and that the offences were of a serious nature. The court also noted that the respondent had shown no remorse for his actions.
The appeal was allowed, and the sentences were set aside. The respondent was sentenced to two months imprisonment to be followed by 12 months probation on Count 1, and to 14 months imprisonment to be suspended after he had served two months with an operational period of 20 months on each of Counts 2 and 3. A warrant was to issue for the respondent’s arrest, to lie in the Registry for seven days before execution.
Orders
Orders of the court
1. The appeal is allowed.
2. The sentences are set aside.
3. On Count 1 the respondent is sentenced to two months imprisonment to be followed by 12 months probation with the requirements set out in s 93 of the Penalties and Sentences Act 1992.
4. On each of Counts 2 and 3 the respondent is sentenced to 14 months imprisonment to be suspended after he has served two months with an operational period of 20 months.
5. A warrant is to issue for the respondent’s arrest, to lie in the Registry for seven days before execution.