R v Tootoo

[2000] QCA 312

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tootoo [2000] QCA 312

PARTIES:

R
v
TOOTOO, Tusipa Aukuso
(applicant/appellant)

FILE NO/S:

CA No 78 of 2000
DC No 146 of 2000

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

27 July 2000

JUDGES:

Pincus and Thomas JJA, Williams J

Separate reasons for judgment of each member of the court, each concurring as to the orders made

ORDER:

Application granted and appeal allowed; sentence below set aside; direction that the endorsements placed upon the summary charge sheets at the Inala Magistrates Court file No 995750 and 998650 be removed; in lieu order that the applicant be sentenced to imprisonment for 12 months suspended after five weeks for an operational period of two years; further order that the applicant be disqualified absolutely from holding or obtaining a driver's license.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS – QUEENSLAND

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS - assault occasioning bodily harm whilst armed where applicant threw coffee mug from one car into another – outstanding summary charges taken into account on sentence without compliance with procedure in s 651 Criminal Code or conditions in s 189 Penalties and Sentences Act – sentencing de novo – exercise of power under s 187 Penalties and Sentences Act to impose disqualification from holding or obtaining a driver’s license – whether further custodial sentence required

Criminal Code (Qld), s 651
Penalties and Sentences Act 1992 (Qld), s 187, s 189

Gillam v Payne CA No 144 of 1997, 17 June 1997, considered
R v Bean [1999] QCA 185, CA No 95 of 1999, 26 August 1999, considered
R v D [1996] 1 Qd R 363, considered
R v Ward [1998] QCA 329, CA No 245 of 1998, 18 September 1998, considered
Scoffin v Hearn CA No 520 of 1996, 15 April 1997, considered

COUNSEL:

T Moynihan for the applicant/appellant

TAC Winn for the respondent

SOLICITORS:

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

1. PINCUS JA:  I agree with the reasons of Thomas JA and with the orders his Honour proposes.

1. The main point in the case is that it is necessary to follow the statutory methods, if a sentencing judge wishes to deal with an offence other than those in the indictment before the Court. As Thomas JA points out, the learned primary judge did not adopt the procedure of summarily deciding a charge of a summary offence, set out in s 651 of the Code; nor were the conditions attached to use of the power set out in s 189 of the Penalties and Sentences Act 1992 fulfilled. All that can be said in favour of the learned primary judge's mode of proceeding is that other sentencing judges have…