R v Tootell; ex parte

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.