R v Tupou; Ex Parte A-G (Qld)

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SUPREME COURT OF QUEENSLAND

CITATION:

R v Tupou; ex parte A-G (Qld) [2005] QCA 179

PARTIES:

R
v
TUPOU, Kieron Albert Luasii
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 88 of 2005
DC No 90 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by A-G (Qld)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:


31 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

31 May 2005

JUDGES:

de Jersey CJ, Atkinson and Mullins JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.          Appeal against sentence allowed

2.          That the sentence imposed in the District Court,      imprisonment for three years suspended after nine      months for an operational period of three years, be      varied to the extent of providing for suspension      after 15 months, and otherwise confirmed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER – APPLICATIONS TO INCREASE SENTENCE – OFFENCES AGAINST THE PERSON – where respondent pleaded guilty to unlawfully doing grievous bodily harm – where attack on the complainant was unprovoked, cowardly and vicious – where there was a disproportion in stature between the respondent and the complainant – where attack took place in the central Brisbane district at night – where respondent made a calculated attempt to avoid detection – where consequences for the complainant were serious – where no weapon used – where respondent appeared to act spontaneously – where respondent was subject to a good behaviour bond at time of attack – where respondent had a limited prior criminal history – where the respondent was sentenced to three years imprisonment, suspended after nine months for an operational period of three years – whether the sentence was manifestly inadequate

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – DETERRENCE – where there was a violent, unprovoked attack in the central Brisbane district at night – whether deterrence is a factor of special significance in determining sentence in these types of cases

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – HEARING IN OPEN COURT AND IN PRESENCE OF ACCUSED – IN PRESENCE OF ACCUSED PERSON – where Judge’s sentencing remarks in the record of proceedings reflected very extensive correction to the transcript, including some matters of substance – whether in determining appeal the court should work from what was said at the hearing or the amended version

Penalties and Sentences Act 1992 (Qld), s 10

Amituanai v R (1995) 78 A Crim R 588
R v Bryan; ex parte A-G (Qld) [2003] QCA 18; CA No 410 of 2002, 5 February 2003, considered
R v Craske [2002] QCA 49, CA No 11 of 2002, 1 March 2002, distinguished
R v Hoogsaad [2001] QCA 27, CA No 277 of 2000, 9…

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Details
Case
[2005] QCA 179
Decision Date

CaseChat Overview and Summary

The case before the court involved the respondent, Tupou, who had pleaded guilty to the offence of unlawfully doing grievous bodily harm. The Attorney-General for Queensland sought to appeal against the sentence imposed by the District Court, arguing that it was manifestly inadequate. The court was tasked with determining whether the sentence was disproportionate to the nature and circumstances of the offence, considering factors such as the unprovoked and vicious nature of the attack, the location and timing of the offence, and the serious consequences for the complainant.

The legal issues before the court included whether the sentence imposed was manifestly inadequate and whether the purposes of sentencing, particularly deterrence, warranted a harsher penalty. The court also needed to decide whether to rely on the original sentencing remarks or the corrected transcript in its evaluation. The court considered the unprovoked nature of the attack, the disproportion in stature between the respondent and the complainant, and the lack of a weapon used in the attack, which suggested a spontaneous act of violence.

The court found that the sentence of three years imprisonment, suspended after nine months for an operational period of three years, was indeed manifestly inadequate. The court emphasised the need for deterrence in cases of unprovoked attacks in public places, particularly those involving significant violence. The court concluded that the sentence did not adequately reflect the seriousness of the offence and the need to deter similar future conduct. The appeal was allowed, and the sentence was varied to provide for suspension after 15 months, while otherwise confirming the sentence.

Orders

Orders of the court

1. Appeal against sentence allowed

2. That the sentence imposed in the District Court, imprisonment for three years suspended after nine months for an operational period of three years, be varied to the extent of providing for suspension after 15 months, and otherwise confirmed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.