R v Tootell; ex parte Attorney-General
[2013] QCA 287
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- R v Tootell; ex parte Attorney-General[2013] QCA 287
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R v Tootell; ex parte Attorney-General[2013] QCA 287
R v Tootell; ex parte Attorney-General[2013] QCA 287
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | DC No 30 of 2012 |
Court of Appeal | |
PROCEEDING: | Re-opening of Proceedings s 188 Penalties and Sentences Act 1992 (Qld) |
ORIGINATING COURT: | |
DELIVERED ON: | 2 October 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Heard on the papers |
JUDGES: | Holmes and Fraser JJA and Henry J Judgment of the Court |
ORDER: | Order 3 is amended to read as follows: “On Count 1 the respondent is sentenced to two months imprisonment and 12 months probation with the requirements set out in s 93 of the Penalties and Sentences Act 1992.” |
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – OTHER MATTERS – where this Court allowed the Attorney-General’s appeal against sentence – where the Court ordered a period of two months imprisonment, followed by 12 months probation – where s 92(2) of the Penalties and Sentences Act 1992 requires that the period of a probation order start on the day the order is made – where the court has re-opened proceedings under s 188(1)(a) of the Act to re-sentence so that the probation period runs from the date of the order Penalties and Sentences Act 1992 (Qld), s 92(2), s 188(1)(a) R v Tootell; ex parte A-G (Qld) [2012] QCA 273, related |
COUNSEL: | No appearance for the appellant, the appellant’s submissions were heard on the papers No appearance for the respondent, the respondent’s submissions were heard on the papers |
SOLICITORS: | Director of Public Prosecutions (Queensland) for the appellant Suthers Lawyers for the respondent |
[1] THE COURT: On 28 September 2012, this court allowed the Attorney-General’s appeal against sentence.[1] The sentences imposed below, which were probation combined with a wholly suspended period of imprisonment, were set aside and in their place were substituted, by orders 3 and 4 of the court’s order, the following:
“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.”
[2] It has been brought to the court’s attention that order 3 does not conform with s 92(2) of the Penalties and Sentences Act 1992, which requires that the period of a probation order start on the day the order is made; the order, as presently formulated, would postpone the commencement of the probation to a date two months after the making of the order. Since that sentence is not in accordance with s 92(2), this court has re-opened the proceeding pursuant to s 188(1)(a) of the Penalties and Sentences Act 1992 in order to re-sentence in such a way that probation commences as at the date of the order.
[3] Accordingly, order 3 is amended to read as follows:
“On Count 1 the respondent is sentenced to two months imprisonment and 12 months probation with the requirements set out in s 93 of the Penalties and Sentences Act 1992.”
Footnotes
[1] R v Tootell; ex parte A-G (Qld) [2012] QCA 273.