R v Tootell; ex parte

Case [2012] QCA 273


SUPREME COURT OF QUEENSLAND

CITATION:

R v Tootell; ex parte A-G (Qld) [2012] QCA 273

PARTIES:

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

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9(5), s 9(5A), s 9(6)
Probation and Parole Act 1983 (NSW), s 21(3)

AB v The Queen (1999) 198 CLR 111, [1999] HCA 46, considered
A-G (Qld) v Francis (2008) 250 ALR 555, [2008] QCA 243, considered
A-G (Qld) v Friend [2011] QCA 357, cited
Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45, cited
Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, cited
R v Astill (No 2) (1992) 64 A Crim R 289, cited
R v Craig; ex parte A-G…

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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.

Background

Background to the litigation

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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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