- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Bahcehan  QCA 278
CA No 46 of 2019
DC No 281 of 2018
Court of Appeal
District Court at Beenleigh – Date of Sentence: 20 February 2019 (Chowdhury DCJ)
3 December 2019
23 October 2019
Morrison JA and Mullins AJA and Henry J
Application for leave to appeal against sentence is refused.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted on his own plea of guilty of eleven indictable offences and seven summary offences and sentenced for those offences – where the indictable offences committed by the applicant included: the dangerous operation of a vehicle; wounding; attempting to unlawfully enter a vehicle with intent to commit an indictable offence, while armed; common assault; assault occasioning bodily harm while armed and possessing a dangerous drug – where the applicant was on parole pursuant to an existing sentence at the time of the offending – where the applicant sought leave to challenge the sentences imposed upon him on the ground that they were manifestly excessive – where the applicant submitted that there was a failure to take into account the totality principle, both in respect of the head sentence and in setting the parole eligibility date – whether there was a failure to take the totality principle into account – whether the sentence imposed was manifestly excessive
Penalties and Sentences Act 1992 (Qld), s 4, s 160C, s 160F
R v Herbert  QCA 62, cited
A Loode for the applicant
C Cook for the respondent
Legal Aid Queensland for the applicant
Director of Public Prosecutions (Queensland) for the respondent
MORRISON JA: On 10 August 2016 the applicant, then a disqualified driver, drove a car with false licence plates around Beenleigh. His journey lasted for more than 17 minutes which might not seem long, but in the course of it he: drove on the wrong side of the road; forced other cars to take evasive action; collided with two other cars; continued to drive when one wheel had lost its tyre and was resting on the metal rim; drove well in excess of the speed limit past a primary school; ran red lights, narrowly missing other cars; drove onto the wrong side of the road to overtake cars and trucks; stayed on the wrong side of the road while he approached a hill; nearly collided with a third car and was finally confronted by another driver when he got out of the car.
Once he got out the applicant ran away, pursued by the other driver. He was apprehended by that driver, in the course of which the applicant stabbed the driver with a knife, once on the right thumb and then in the left chest. The applicant then tried to highjack four separate cars which were waiting at a car wash. The applicant still had his knife in his hand as he did this. The fourth driver got out of his car to grapple with the applicant, who stabbed him in the abdomen and upper right arm.
While being held on the ground, with others trying to disarm him, the applicant spat in a woman’s face threatening to kill her. Others joined the attempt to subdue the applicant, and he stabbed another man in the upper right arm, and a further man on the calf. He also tried to bite one man’s arm.
Police eventually arrived and apprehended the applicant.
After his arrest and while in the watch house police observed the applicant trying to inject himself using a syringe and a needle. He was searched and police found Subutex.
Some weeks before these events police had apprehended the applicant when he was found in possession of methylamphetamine and MDMA.
Arising out of those events the applicant was charged with eleven indictable offences and seven summary offences. He pleaded guilty and was sentenced for the offences on 20 February 2019. The indictable offences and the sentence imposed on each can be seen from the following table:
Sentence of imprisonment
Dangerous operation of a vehicle, with a previous conviction
3 years and disqualified absolutely
2 and 9
Attempting to unlawfully enter a vehicle with intent to commit an indictable offence, while armed
Assault occasioning bodily harm while armed
Possessing a dangerous drug
The learned sentencing judge imposed a parole eligibility date of 9 October 2022. This was expressed to be 18 months after the full time discharge date of the applicant’s then existing sentence, in respect of which he was on parole at the time of the current offences. His parole related to convictions for armed robbery, arson, malicious act with intent (a total of 42 offences) and other offences. He had been sentenced to a period of eight years imprisonment with a parole eligibility date of 25 November 2015. Thus he had been on parole for a period of five months at the time of committing the present offences. His parole was cancelled when he was returned to custody on 10 August 2016.
The summary offences can be grouped into three categories. Two offences of obstructing a police officer and possessing a dangerous drug were committed on 22 July 2016. In respect of those the applicant was convicted and not further punished. Three were committed on 10 August 2016, possessing a knife in a public place, possessing a utensil or pipe, and driving a motor vehicle without a licence while disqualified. In respect of those, the applicant was convicted and not further punished, but disqualified from holding a licence for five years. Finally, two offences of possessing a dangerous drug and a utensil or pipe were committed on 12 August 2016. In respect of those the applicant was convicted and not further punished.
The applicant seeks leave to challenge the sentences imposed upon on the ground that they were manifestly excessive. Within that ground submissions were advanced based on the alleged failure to take into account the totality principle, both in respect of the head sentence and in setting the parole eligibility date.
Circumstances of the offending
There were two agreed statements of facts, one relating to the indictable offences, and the other to the summary offences. I will deal with them chronologically. What follows is a précis of those agreed facts.
Summary offences – 22 July 2016
On 22 July 2016 the applicant entered a toilet at a service station, and remained inside. Police arrived and told the applicant to walk towards them. He looked at them and ran towards neighbouring premises, despite being told to stop numerous times. The applicant removed some items from his pockets and threw them on the ground as he ran away. Police chased him. One of the officers fell into a large drainage ditch, causing injuries to his face, knees and damage to his clothing. The applicant was caught and handcuffed. The items thrown away during the chase included three clip seal bags containing one gram of methylamphetamine and 0.8 grams of MDMA. He was taken to the watch house where he admitted to the possession of the drugs. He was granted bail on 23 July 2016.
Count 1 was dangerous operation of a motor vehicle. It occurred whilst the applicant was disqualified as a driver and was the subject of a summary offence number 1. In the events which followed all the driving by the applicant was at a time when he had been disqualified from holding or obtaining a driver’s licence. Further, the driving to which I will now refer took place in a car, the number plates of which were not assigned to that car.
On 10 August 2016, at about midday, the applicant drove his car on the wrong side of the road, then conducted a U-turn into the opposite lane without stopping. His car collided with a car driven by Ms Christen, whose grandson was also in the car. The applicant’s car also collided with another car, pushing Ms Christen’s car into the side of the road. The applicant did not stop at the accident. Instead, he drove back over the median strip onto the wrong side of the road, accelerated and drove away.
No-one was injured as a consequence of the accident. Ms Christen’s car sustained damage of approximately $5,400.00 which was wholly paid by insurance.
Mr Sayer heard the collision from a nearby shop and saw the applicant accelerate away. He got in his car and followed the applicant, to obtain the registration number. The applicant drove on the wrong side of the road for some time until Mr Sayer lost sight of the car because of a curve in the road. He slowed down to look for the applicant’s car in side streets.
The applicant turned into one street and then back onto the street he had been on. Mr Sayer observed that the front passenger tyre was missing and smoke was coming from that area. The applicant’s car made a continuous loud noise and the metal rim of the tyre caused indents on the road. Mr Sayer followed the car and photographed the smoke. He was driving his car at 60kph and estimated the applicant’s speed at more than 80kph as he went past a primary school.
The applicant drove through a red light that was stopping traffic turning right, narrowly missed a stationary car at the intersection. The applicant then drove towards Beenleigh, followed by Mr Sayer.
The applicant drove on the wrong side of the road and drove on multiple lanes. The cars at another intersection were stationary due to a red light which also faced the applicant. One vehicle waiting to turn right did so, against the red light, to avoid a collision with the applicant’s fast approaching car. The applicant drove between a black BMW and another stationary car, colliding with the BMW. That car was driven by Ms King who had her two young sons in the car. The applicant did not stop after the second collision, and drove through a red traffic signal. The damage to Ms King’s car was totally covered by insurance.
At a roundabout the applicant drove between two traffic islands onto the wrong side of the road to overtake several trucks. The applicant continued to drive on the wrong side of the road while he was approaching a hill, when he could not have seen any approaching traffic.
Mr Sayer, still following, overtook the trucks. The applicant entered another roundabout without giving way. Again he drove on the wrong side of the road and forced oncoming traffic to take evasive action to avoid a collision. The applicant drove his car at a high speed through roadworks.
Potential third collision
Mr Taite, with his wife was in the car, as well as their two-year old toddler and six-month old baby, drove through an intersection when the applicant drove towards them on the wrong side of the road. The applicant turned right without indicating, staying on the wrong side of the road. Mr Taite had to apply the brakes quickly to prevent a collision. The applicant almost collided with a third vehicle.
Mr Taite followed the applicant who eventually stopped and got out of the car, pulling out bags as well.
Attempt to apprehend the applicant
Mr Taite pulled up next to the applicant, and told him to stop as police were on their way. The applicant said, “Sorry mate, sorry”. He picked up his bags and ran off, with a satchel over one of his shoulders. Mr Taite chased the applicant and tackled him to the ground. He rolled the applicant on his back, placed his knees on the back of the applicant’s neck, pulled the applicant’s left hand behind his back, and applied pressure to his hand and back until police arrived.
Wounding to Mr Taite
The applicant told Mr Taite, “I don’t want to have to shoot you, bro”. Mr Taite asked him why he wanted to shoot him and said they were waiting for the police. The applicant threatened him again saying, “I don’t want to have to shoot your wife”. Mr Taite yelled out, “He’s got a gun”, to keep the police (on the phone with Mrs Taite) updated.
The applicant inserted his right hand inside his satchel. Mr Taite reached over the top of the bag to grab the applicant’s right hand. The applicant grabbed a knife from his satchel and cut Mr Taite’s right thumb (on the palm side). Mr Taite yelled out, “He’s got a knife and it’s a blade”, and told his wife to move away. Mr Taite “freaked out” so he jumped off the applicant and released him. The applicant then stabbed Mr Taite’s left chest before he ran away with his bags. Mr Taite also sustained a cut under his left knee. Mrs Taite chased the applicant.
Attempting to unlawfully enter a vehicle with intent to commit an indictable offence while armed
The applicant ran to a nearby carwash. At about 12.30 pm Ms Bristow was at the middle carwash bay. Her partner, Mr Coghlan, and their two children were also in the car.
The applicant opened the driver’s door of Ms Bristow’s car and demanded that she, “Get the fuck out of this car”. She asked him if he was serious and pushed him away, closing the door. She removed the keys from the ignition but before she could lock the door the applicant opened it again and demanded, “Yes, I am fucking serious, get out of the fucking car”. She told him a number of times, “Don’t do it, I’ve got kids in the car”. The applicant stalled for a minute, and said, “Shit”.
Mr Coghlan got out of the car and told the applicant, “You picked the wrong car you fucking piece of shit, I’ve got my two-year daughter and four-year old son in the back”. The applicant put up his hands, took a step back and said, “Sorry bro, sorry” and then walked to the next automatic carwash bay.
Attempting to unlawfully enter a vehicle with intent to commit an indictable offence, while armed
Ms Peirano was in her car, waiting for another car to complete its wash. The applicant walked to her car, opened the driver’s door and stepped closer to the driver’s seat. He demanded three to four times, “Get out of the car, I need your car” as he held a knife across his chest. The knife’s blade was around 9 cm long. Ms Peirano kicked the applicant with both her feet and screamed out. The applicant stood there and Ms Peirano continued to kick him back. The applicant retreated and walked around to the passenger side. Ms Peirano locked her car doors and called 000. The applicant yelled and tried to open the door handle unsuccessfully, and then left.
Attempting to unlawfully enter a vehicle with intent to commit an indictable offence, while armed
Mr Lowery was inside his car inside the carwash. The doors to his car were unlocked. As the first wash cycle was completed the applicant approached his car and opened the driver’s door. The applicant yelled out, “Get out of the car, I need your car”. Mr Lowery said no and the applicant repeated his demand. Mr Lowery shouted, “Fuck off!” as he leaned out of the driver’s seat. The applicant turned around and ran away.
Attempting to unlawfully enter a vehicle with intent to commit an indictable offence, while armed
The applicant ran across the road to a McDonald’s restaurant. Mr Chambers was in his car in the drive-through. The applicant approached the car and opened the driver’s door. He held the knife in his left hand and waved it towards Mr Chambers, saying, “I’m gonna take your car”, and demanded, “Get out of your car”. Mr Chambers told the applicant he could have the car and that he would undo his seatbelt. He did so. The applicant demanded, “Hurry up, get out of the fucking car, get out of the car”. Mr Chambers reassured him that he was leaving the car.
Wounding to Mr Chambers
As Mr Chambers got out of the car, he grabbed and pushed both of the applicant’s arms up. Mr Chambers’ right hand slipped off the applicant’s left arm that held the knife. Mr Chambers pulled his right hand back to punch the applicant, and the applicant stabbed Mr Chambers’ lower abdomen. Mr Chambers punched the applicant’s head, making him stagger back a couple of metres.
Mr Chambers grabbed the applicant’s arms again, lifted the applicant up and tried to push him to the ground. The applicant swung the knife around violently. During this process the applicant stabbed Mr Chambers’ upper right arm.
Mr Chambers asked people to take the applicant’s knife from him while he held him on the ground. Ms Kirkland tried to disarm the applicant by pulling the applicant’s fingers off the knife handle. The applicant spat in her face and said, “I’m gonna kill you when I get you!”. The knife fell on to the ground and the applicant grabbed it again.
Wounding to Mr De Berg
Other men, including Mr De Berg and Mr Coghlan, tried to assist Mr Chambers. Mr De Berg grabbed the applicant and the applicant stabbed his upper right arm.
Assault occasioning bodily harm, while armed
The applicant swung his knife around and cut the back of Mr Coghlan’s left calf.
Disarming the applicant
Mr Chambers pushed the applicant to the ground. Mr Chambers held the applicant’s left wrist, which held the knife, and pinned his right arm across his chest. The applicant tried to bite Mr Chambers’ arm as he was being held down.
Mr De Berg tried to pull the knife out of the applicant’s hand but the applicant did not release it. The applicant tried to wave the knife around. Mr Chambers asked Mr De Berg to stomp on the applicant’s hand to force him to release the knife. Mr De Berg stomped on the applicant’s hand several times until the applicant released the knife. Mr De Berg picked the knife up and held it until police arrived.
Mr Chambers felt blood pour out of his wound and asked others to hold the applicant down so he could attend to his injury. Two other men held the applicant down until the police arrived.
Police arrived soon after 12.30 pm and handcuffed the applicant. Inside his satchel, which was still across his shoulder, they located 0.30 grams of cannabis and a glass smoking pipe. The applicant’s knife was a 22 centimetre flick knife, with camouflage pattern on the blade and handle.
Injuries and treatment
Mr Taite stayed in hospital overnight. He received nine stitches on the 10 centimetres wound to his chest. He also sustained an abrasion on his left knee, as well as the laceration on his right thumb. Mr Chambers’ wounds were stitched internally. The wound to his torso was close to his bowel at the lower right quadrant of the abdomen. He was discharged from hospital the next day. Mr De Berg had a six centimetre wound on his upper right arm which required 10 stitches. Mr Coghlan went to a general practitioner after he provided his statement to police.
Arrest, applicant’s comments and the condition of his vehicle
At 1.40 pm the applicant was transported to the hospital for cuts to his hands. He admitted to paramedics that he had consumed amphetamines. That night he was taken to the Beenleigh watch house. The next day the applicant spoke to police at the watch house. He said he could not remember how he sustained his injuries and did not want to make any admissions.
The applicant’s car was in an unsatisfactory mechanical condition as the rear brakes were leaking brake fluid at both rear wheel cylinders.
Possessing drugs and utensils
On 12 August the applicant was in a cell by himself at the Beenleigh watch house. Police observed the applicant trying to inject his buttocks with a syringe and needle. Police then searched the applicant and his cell. They located a homemade syringe inside the applicant’s pants, as well as white substance which the applicant admitted was Subutex. He admitted that he had obtained the Subutex and the syringe from another prisoner at the watch house.
Applicant’s antecedents and criminal history
The applicant has a lengthy criminal history in New South Wales as well as Queensland. His convictions in New South Wales span a period since 2000, whereas those in Queensland commenced in 2012.
The Queensland offences commenced in 2012 and 2013 with drug related offences for possession of drugs, possession of utensils and pipes and assault or obstructing a police officer. No convictions were recorded on those offences.
On 25 August 2014 the applicant was sentenced for a large number of offences including armed robbery in company with personal violence, multiple counts of unlawful possession of a motor vehicle and unlawful use of a motor vehicle, malicious acts with intent, arson and weapons offences. He was sentenced to imprisonment for eight years with parole eligibility set at one-third of that time which, taking into account time already served, was set at 25 November 2015. He was also disqualified absolutely from holding or obtaining a driver’s licence.
In 2018 the applicant was convicted of dealing with a prohibited thing on 23 October 2016, and therefore subsequently to the current offences. Three months’ imprisonment was ordered with a parole eligibility date of 29 January 2018.
The applicant’s New South Wales convictions between 2000 and 2002 for various traffic offences and for breaking and entering a building, unlawful possession of a prescribed restricted substance, assault occasioning bodily harm and demanding property with menaces. On the latter two convictions he was sentenced to periodic detention.
Drug related offences continued in 2003 and 2005. Additional convictions for possession of goods suspected of being stolen, custody of a knife in a public place and possession of ammunition occurred in 2005, as did a period of imprisonment for receiving property. In 2006 there was a conviction for larceny, one for shoplifting and another for custody of a knife in a public place. Drug offences were committed in 2007 and then again in 2010. Further, in 2010 there were convictions for carrying a knife in a public place and possession of goods suspected of being stolen, as well as breaking and entering and stealing.
The applicant’s supervision history on his parole was provided to the learned sentencing judge. That revealed that he was released on parole on 21 March 2016, but four months later committed further offences of assaulting or obstructing police, and possession of dangerous drugs. Then on 25 July 2016 the applicant provided a presumptive positive drug test to amphetamines and methylamphetamine, as a result of which his parole order was suspended for a period of 28 days. He was considered to display an unacceptable risk of reoffending. Thus it was the case that when the present offending was committed, the applicant was aware that he had failed a drug test which would have affected his parole.
The learned sentencing judge was told that at the time of the current offences the applicant understood that he had given a “dirty urinalysis test and saw that he was going to go back to detention”. He was scared of being put back in prison and panicked.
The material before the learned sentencing judge revealed that the applicant was born in 1984, and therefore 32 at the time of the present offending. The learned sentencing judge was told that he is the son of Turkish immigrants, and his parents split up when he was five. He grew up with his mother as his father was violent. He was schooled to year 11 or 12, and had served a period of national service totalling about 16 months. During that time he saw active service in Syria. Notwithstanding that, he had a history of employment in various positions. He had developed a drug habit involving amphetamines and heroin. He had been married for some years, but the relationship did not last, and there were no children involved.
Approach of the sentencing judge
The learned sentencing judge noted the applicant’s plea of guilty to the charges, the fact that he was 33 at the time of the offending and now 34, the criminal history and in particular the sentence imposed in August 2014. His Honour referred to the applicant having been “sentenced to a total period of eight years’ imprisonment”, with a parole eligibility date at 25 November 2015, after presentence custody was declared. His Honour also noted the sentence imposed on 29 January 2018, for dealing with a prohibited thing, and the fact that the three month sentence was cumulative upon that imposed in 2014.
The learned sentencing judge noted the following aspects, apart from noting the late plea and setting out the circumstances of the offending conduct:
all offences were committed while on parole, which showed a complete disregard for the laws of the state and for the parole regime;
the suspension of parole on 25 July 2016, and its cancellation on 19 August 2016;
that the applicant was now serving the balance of the sentence imposed in 2014, with a full-time discharge date of 9 April 2021;
it was an aggravating feature that all of the offences on the indictment, and some of the summary offences, were committed whilst on bail;
the applicant’s drug addiction and traumatic background as a child;
that the injuries to Mr Chambers were very serious;
the consumption of amphetamines by the applicant was “probably … in part, an explanation for this frenzy of serious, dangerous criminal activity”;
that the applicant was not only driving dangerously, but driving a defective car;
the offending was characterised as so serious “it is a miracle how you did not kill someone with your dangerous driving and then with the knife wielding”;
the conduct showed “dangerous behaviour such that, on any objective view, … unless you treat your amphetamine addiction … you’re likely to remain a danger to the community upon your release”;
in the exercise of discretion his Honour held that the penalty for assault occasioning bodily harm while armed would be cumulative;
the applicant’s personal circumstances, including his previous history of good work in employment; and
the need for general deterrence, and the issue of personal deterrence.
The learned sentencing judge stated that he would consider six years an appropriate overall sentence for the offending and, noting that the maximum penalty for the wounding offences was seven years’ imprisonment, expressed his view that the applicant was “close to deserving a maximum for that offence, given the circumstances”.
The learned sentencing judge had been addressed on the issue of ensuring that the overall sentence should not be crushing, given that the applicant was currently serving a sentence at the time the offences were committed. In the course of defence counsel’s submissions, the learned sentencing judge was told that “a sentence in the order of five years for the current offences gives an overall sentence of 13 on top of the eight, and my submission is I’d be hard-pressed to argue anything less than that”.
It was then submitted that “the moderation for the crushing effect would bring the sentence to that level”. On the question of what parole eligibility date should be set, the learned sentencing judge asked defence counsel whether it should be “18 months from his full time discharge date”. Then the following exchange occurred:
“His Honour: Well, he’s returned to custody on the 10th of August 2016. So, ordinarily, you’d get a discount for your plea of guilty of about a third.
Defence Counsel: Yes.
His Honour: --- so – well, maybe it might be a little less than 18 months, so a third and five years.
Defence Counsel: And I say ---
His Honour: About 14 months.
Defence Counsel: Yes, so the – because of the cumulative effect ---
His Honour: Yes.
Defence Counsel: --- I say that it should be moderated to how your Honour might reflect that.
His Honour: Well, you moderate the head sentence because of the cumulative effect ---
Defence Counsel: True.
His Honour: --- and, as a result, then, there’s a practical moderation in the non-parole period because I’m working on a third of the moderated head sentence.
Defence Counsel: Yes, but the totality of the first sentence because its cumulative, so he will have the whole of that, so if one goes to the [indistinct] so I appreciate Your Honour is moderating the top.
His Honour: Yes.
Defence Counsel: [I’m] probably overreaching seeking to have it moderated somewhat given that almost the whole of that eight year sentence will be served.
His Honour: Yes. It’s his own fault. Yes.
Defence Counsel: Undoubtedly.”
In the sentencing remarks the learned sentencing judge said this:
“Because all of these sentences are to be made cumulative on the sentences you’re currently serving, and they don’t expire until 9 April 2021, I will moderate the overall sentence to a total of five years imprisonment. And even though your plea of guilty was entered late, close to when the trial was listed to commence, I give you credit for that plea of guilty. … So, I intend to impose a sentence of overall five years imprisonment, to be cumulative on the sentences you’re currently serving. And I will see you, for credit of your plea of guilty, eligible for parole a little short of a third of that sentence of five years in prison.”
Shortly thereafter there was a discussion about the parole eligibility date. The learned sentencing judge explained his approach: “… to try and give some credit to the defendant’s pleas of guilty, I’ve given him an eligibility date. Which is, I think, a little less than the third. Probably only by a month or so.”
Ms Loode of Counsel, appearing for the applicant before this Court, referred to the decision in Mill v The Queen and its approval of a statement in respect of the totality principle, that its effect was to require a sentencer who has passed a series of sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”. Acknowledging that defence counsel at the sentencing hearing conceded a moderated head sentence of five years was appropriate, it was submitted that five years was an inadequate moderation in light of the aggregate of 13 years for both sets of offending. Referring to R v Coleman it was submitted that an appropriate aggregate sentence for the current offending would be to moderate the head sentence to three and a half to four years’ imprisonment.
It was further contended that the learned sentencing judge fell into error by not taking into account the presentence custody which could not be declared. The applicant was returned to custody on 10 August 2016 and continued in custody until the sentence was imposed on 20 February 2019. That period of two years and six months could not be declared as the applicant was also serving the sentence imposed in 2014. It was submitted that the continuing period of custody was a relevant consideration in the determination of what was “just in all the circumstances”.
Further, it was contended that the parole eligibility date imposed (9 October 2022) was expressed to be 18 months after the full time discharge date of the sentence imposed in 2014, namely 9 April 2021. The effect of that order was that the applicant will have to serve a period of nine years and two months out of the aggregate 13 years’ imprisonment, before becoming eligible to apply for parole. That was because he had served three years of his original sentence before being released, and was then returned to custody on 10 August 2016. With a parole eligibility date of 9 October 2022, that was a further period of six years and two months incarceration prior to being eligible to apply for parole. It was said that this again offended against the totality principle as espoused in Mill v The Queen. The eventual submission was that the parole eligibility to have been between one third mark and the halfway mark of the aggregate sentence.
Finally, it was submitted that as the applicant will have served six years and two months by the time of the hearing of the appeal, almost the halfway mark of the aggregate sentence, eligibility for parole should be fixed immediately.
For the respondent, Mr Cook submitted that s 206(3) of the Corrective Services Act (Qld) has the practical effect that when a parole order is cancelled and the requirement is to “serve the unexpired portion of the prisoner’s period of imprisonment”, the start point is that the prisoner should serve the entire unexpired portion. Because of that it was the applicant’s own conduct that placed him in the situation where he would serve most of the eight year sentence imposed in 2014. It was then submitted that the presentence custody certificate tendered at the sentencing hearing contained an error in that the applicant was then serving a total period of eight years and three months. The learned sentencing judge expressed the new parole eligibility date (9 October 2022) to be 18 months after the full time discharge date of 9 April 2021. In fact the full time release date was 9 July 2021. That three month error worked in the applicant’s favour, as his parole eligibility date was fixed three months earlier than had been intended. The new parole eligibility date being only 15 months after the full time discharge date of the earlier sentence, that represented a quarter of the five years cumulative term.
Referring to the totality principle, it was submitted that the moderated sentence under that principle should not be lowered below that which would otherwise be appropriate. The fact that the current offences were committed whilst on bail and also whilst on parole, the applicant being unlawfully at large, and the appalling seriousness of the offending conduct, meant that a sentence lower than that imposed would offend against the totality principle. Further, the fact that the head sentence was that proposed by the applicant’s own counsel below presented a significant hurdle on the challenge. Finally, it was submitted that it could not be demonstrated that the learned sentencing judge exceeded the limits of his discretion by ordering parole eligibility after the applicant had served one quarter of the cumulative term.
Parole eligibility date
Section 160F of the Penalties and Sentences Act 1992 (Qld) deals with the significance of an offender’s period of imprisonment. It relevantly provides:
“(2) When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment.”
The phrase “period of imprisonment” is defined in s 4 of the Penalties and Sentences Act to mean:
“[T]he unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether –
ordered to be served concurrently or cumulatively; or
imposed at the same time or different times;
and includes a term of imprisonment.”
The applicant’s “period of imprisonment” at the time he was sentenced consisted of the original eight years and three months, and the cumulative sentence of five years imposed by the learned sentencing judge. That is the period of imprisonment to which s 160F(2) refers when it provides that “the date fixed by the court must be a date relating to the offender’s period of imprisonment”.
It is evident from the sentencing remarks that the learned sentencing judge set the parole eligibility date by reference to the original term being served and the extra five-year term which he imposed. The passages set out in paragraphs  and  above reveal: (i) his Honour realised that he had a discretion as to the setting of a parole eligibility date; (ii) his Honour considered that the cumulative effect of the two sentences called for moderation; (iii) one step to achieve that was to moderate the head sentence; (iv) in addition to that there was to be credit given for the plea of guilty; that it was additional to the head sentence moderation is signified by the use of the word “And” at the start of the second and last sentences, and the comments in paragraph  above; and (v) that credit was achieved by setting that date at less than one-third of the already moderated five year cumulative sentence.
The sentencing judge’s power to fix the date upon which the applicant would be eligible for parole was conferred by s 160C of the Penalties and Sentences Act in unqualified terms:
“… the court may fix the date the offender is eligible for parole …”
In R v Herbert this Court considered the situation where an offender was convicted of a number of offences not long after he was released on parole. He was sentenced to three and a half years’ imprisonment, to be served cumulatively upon sentences which had been imposed some years earlier. The parole eligibility date set by the sentencing judge was 10 months after the full time release date under the original sentence, and 39 months after the commencement of the total period of imprisonment (71 months). It was contended that the parole eligibility date was set in error, in part by reference to s 160F(2) of the Penalties and Sentences Act. It was contended that whilst the commission of fresh offences on parole made it appropriate to impose a cumulative sentence, it did not justify the additional punishment of deferring parole eligibility beyond the mid-point of the total term.
As to that the Court said:
“ The sentencing judge’s discretion in this case, as in many similar cases, certainly extended to requiring the applicant to serve both the remainder of his existing term and a substantial part of the new, cumulative term before becoming eligible to be considered for parole. The applicant’s pre-existing parole order was cancelled by the imposition of the fresh sentence of imprisonment. Unless the sentencing judge fixed a new parole eligibility date, the applicant’s parole eligibility date would become “the day after the day on which the prisoner has served half the period of imprisonment to which the prisoner has been sentenced, despite any grant of remission.” The expression “period of imprisonment” means “the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether…ordered to be served concurrently or cumulatively; or…imposed at the same time or different times…”. However, the sentencing judge’s power to fix the date upon which the applicant would be eligible for parole was conferred by s 160C of the Penalties and Sentences Act 1992 in unqualified terms:
“…the court may fix the date the offender is eligible for parole…”
 As was submitted for the respondent, no provision restricted the sentencing judge’s discretion to fix the parole eligibility date. The prosecutor’s submission that the sentencing judge could set a parole eligibility date at whatever date the sentencing judge thought fit was accurate. It is true that the prosecutor should have referred to s 160C of the Penalties and Sentences Act 1992 rather than to s 160G of that Act, but the mistake was inconsequential. Section 160F does not have the significance attributed to it in the applicant’s submissions: s 160F(2) merely makes it plain that a parole release date or a parole eligibility date fixed by the court must relate to the total duration of imprisonment. The sentencing judge understood as much.
 The applicant referred to cases in which the High Court emphasised the importance of the text of relevant statutory provisions. The sentencing judge correctly apprehended that the task was to fix a parole eligibility date with reference to the total period of imprisonment. Nothing in the relevant legislative provisions precluded the sentencing judge from having regard to the extent to which the parole eligibility date would post-date the full time release date under the pre-existing term of imprisonment.”
What is evident from those passages is that s 160F(2) does not require that the parole eligibility date must be calculated as some proportion of the period of imprisonment. The words of the section merely require that the date “relate to” the total period. One of the meanings of the phrase “relating to” is “to have reference to”. This Court construed it that way in R v Herbert. Hence s 160F(2) merely requires that when the sentencing judge fixes the parole eligibility date the judge must do so having reference to the total period. To give s 160F(2) greater operation would be to cut down the unqualified power given under s 160C of the Penalties and Sentences Act, and there is no warrant for that. It is sufficient if the sentencing judge fixes the date having reference to the total period, i.e. having that context in mind when doing so. That is what occurred in this case.
The first basis upon which it is contended that the sentence was manifestly excessive was in respect of the head sentence of five years. Acknowledging that the learned sentencing judge moderated what his Honour said was the start position of six years, it was contended that greater moderation was required, on an application of the principles in Mill v The Queen. The contention was that five years was an inadequate moderation when one noted that the overall total sentence became 13 years.
There are a number of difficulties confronting this contention.
First, Counsel then appearing for the applicant expressly conceded that a sentence in the order of five years to give an overall sentence of 13 years was appropriate. Counsel expressed the view that he would be hard pressed to argue for anything less and that “moderation for the crushing effect would bring the sentence to that level”. The circumstance that the sentence imposed on an applicant for leave to appeal accords with the submission made on behalf of that applicant, is an obstacle to an argument that sentence imposed was manifestly excessive. The contention of manifest excess in respect of the head sentence should only be accepted if there were special circumstances warranting the conclusion that the applicant should not be bound by the conduct of his case in the court below. One struggles in vain to find any special circumstances in this case where the objective seriousness of the offending is at such a level that it could hardly be said that six years’ imprisonment was beyond the bounds of discretion, let alone the moderated figure of five years.
Secondly, no authority cited to this Court suggests that five years was manifestly excessive. It must be borne in mind that the offences included three counts of wounding and four counts of unlawful entry of vehicles, not to mention the highly dangerous unlicensed driving which caused two collisions and nearly some others. The decisions referred to the learned sentencing judge demonstrated that five years was within the proper exercise of discretion, accepting that it was a moderated head sentence.
The second contention was in respect of the parole eligibility date imposed. To properly assess that contention the chronology is important:
25 August 2014: sentenced to eight years’ imprisonment with a parole eligibility date at 25 November 2015;
21 March 2016: released on parole;
22 July 2016: committed a drug offence and obstructing police;
23 July 2016: granted bail;
25 July 2016: positive drug test to amphetamines and methylamphetamine in urine analysis; parole suspended; applicant knew that he had provided a contaminated urine sample, and knew he would be returned to custody;
10 August 2016: current offences committed, including three counts of wounding and four counts of attempting to unlawfully enter a vehicle with intent to commit an indictable offence, while armed;
10 August 2016: returned to custody;
12 August 2016: drug offences while in custody;
19 August 2016: parole order cancelled;
29 January 2018: sentenced to three months’ imprisonment, cumulative upon the existing sentence, and a new parole eligibility date set at 29 January 2018; and
20 February 2019: current sentence imposed; five years cumulative upon the eight years and three months, and new parole eligibility date set at 9 October 2022.
The applicant’s full time release date up to the sentence imposed on 29 January 2018 was 9 April 2021. Once the three months’ imprisonment was made cumulative upon the eight year sentence, the full time release date became 9 July 2021.
By the time the applicant was released on parole he had served just on three years of his (then) eight year sentence. Having been returned to custody only four and a-half months later, he had served five years and six months of this (then) eight years and three months sentence, by the time of the current sentencing. In other words, by the time of the current sentence he had served two-thirds of the then existing sentence.
In my view there are a number of reasons why it cannot be concluded that the learned sentencing judge went beyond the sentencing discretion in setting the new parole eligibility date.
First, as noted above there is an unqualified discretion given in that respect by s 160C of the Penalties and Sentences Act. Further, his Honour was aware of the cumulative nature of the sentence he was imposing, and that five years would be added to the existing eight years and three months. In an exercise to avoid the crushing effect of any sentence to be imposed, his Honour deliberately moderated the head sentence and deliberately moderated the parole eligibility rate to reflect what was, effectively, the only thing that could be said in the applicant’s favour, which was that he entered a late guilty plea. His Honour evidently intended that the additional moderation in respect of the parole eligibility date would be by bringing that date below the one-third mark of the already moderated five year term. His Honour was working on the basis that 18 months beyond what he understood the full time release date to be (9 April 2021) would reflect that. As it happens, there was an error which worked in favour of the applicant, in that the full time release date was actually 9 July 2021. The net effect of setting the parole eligibility date where it was set, was that it was only 15 months beyond the full time release date of the existing sentence.
Secondly, the objective seriousness of the offences was aggravated by at least three factors: (i) the fact that they were committed while on bail; (ii) the fact that they were committed while on parole; and (iii) the fact that they were committed at a time when the applicant knew that he had breached his parole by providing a contaminated urine sample, which he understood meant that he would be returned to custody. The applicant embarked on a terrifying public rampage in the course of which he endangered many people, wounded three, and threatened others.
Given his history of repeated violent offending, and the lateness of his guilty plea to the most serious wounding offence, I am unable to conclude that the sentencing discretion miscarried. The applicant’s contentions would have the parole eligibility date set in such a way that only an additional eight months was to be served under the sentence imposed on 20 February 2019. In my respectful view, to do so would produce a sentence which was not just and appropriate. The extraordinarily serious nature of the current offences called for condign punishment. By his multiple breaches of his parole order the applicant placed himself in the position where it was almost inevitable that he would serve the full eight years and three months of the then existing term. To impose merely another eight months before parole eligibility would be disproportionate in the circumstances.
Thirdly, by the time of sentencing there was nothing to suggest any particular step by way of rehabilitation. Thus, the learned sentencing judge was confronted with an applicant who was a mature person with a significant criminal history including violent offences, and who squandered his parole by committing even more serious violent offences. Those circumstances, together with the matters above, afforded no basis to be lenient in the way contended.
Fourthly, were this Court to exercise that particular discretion afresh, I am not satisfied that there would be any different result. If one considered the total period of sentence, namely 13 years and three months, the halfway point would be six years and seven and a-half months, or 9 May 2021. The parole eligibility date set by the learned sentencing judge was 9 October 2022, one year and five months beyond the halfway point. However, as was pointed out in R v Herbert the correct approach in relation to a period of imprisonment comprising an existing term and a new, cumulative term imposed for offences committed whilst on parole, does not include a consideration that there should be some “good reason” for fixing the parole eligibility date beyond the mid-point of the total term. In other words, the constraint that might normally be considered when going beyond the halfway point of a sentence does not apply in this case.
Here the most significant feature of the offences for which the learned sentencing judge imposed five years and the new parole eligibility date, was that the offences were quite separate from those which produced the eight years and three months sentence, and they were committed while on bail and while on parole, and despite having been imprisoned under the earlier sentence. That factor would justify a parole eligibility date being set beyond the halfway point of the total term. Notwithstanding the additional five years’ imprisonment imposed, the parole eligibility date of 9 October 2022 was only one year and five months beyond the notional halfway point. A parole eligibility date closer to the full time release date for the existing sentence would be inappropriately lenient. These factors justified the postponement of the parole eligibility date past the halfway point of the total term in R v Herbert.
For the reasons given above the application for leave to appeal against sentence should be refused.
MULLINS AJA: I agree with Morrison JA.
HENRY J: I agree with Morrison JA.
The common name for Buprenorphine.
3, 4 Methylenedioxymethamphetamine.
Summary offence 4.
Summary offence 5.
Count 2 on the indictment.
Count 2 on the indictment.
Count 3 on the indictment.
Count 4 on the indictment.
Count 5 on the indictment.
Count 6 on the indictment.
Count 7 on the indictment.
Count 8 on the indictment.
Count 9 on the indictment.
Count 10 on the indictment.
Count 11 on the indictment, and summary offences.
Summary offences 6 and 7.
Appeal Book (AB) 82.
AB 34 line 31.
As noted above, the applicant was 32 at the time of the offending but was incorrectly described during the trial as being 33 at the time of the offending.
AB 39 line 38.
AB 39 line 43.
AB 43 line 4.
AB 43 line 13.
AB 43 line 21.
AB 44 line 18.
Prosecutor at AB 28; defence counsel at AB 31-32.
AB 31 line 44 to AB 32 line 4.
AB 32 line 8.
AB 35 line 36.
AB 35 line 43 to AB 36 line 34.
AB 44 lines 24-35.
AB 45 line 36.
(1988) 166 CLR 59.
 QCA 176 at .
R v Frame  QCA 9 at .
 QCA 62.
R v Herbert at - and ; emphasis added; internal citations omitted.
Macquarie Dictionary, 7th Ed., 2017; Australian Concise Oxford Dictionary, 7th Ed., 1987.
AB 32 lines 3-9.
R v Frame  QCA 9 at .
R v Walsh  QCA 391 at .
R v Devon  QCA 216; R v Woods  QCA 310; and R v Hill  QCA 177.
His Honour adverted to the extra three months cumulative at AB 39 line 43.
R v Herbert at .
R v Herbert at -.
- Published Case Name:
R v Bahcehan
- Shortened Case Name:
R v Bahcehan
 QCA 278
Morrison JA, Mullins AJA, Henry J
03 Dec 2019
No Litigation History