R v Atasoy[2023] QCA 121

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Flanagan JA and with the orders proposed by his Honour.
2. [2]
   FLANAGAN JA: On 12 August 2021 the applicant pleaded guilty to two counts of unlawful possession of a motor vehicle (counts 1 and 2), two counts of possessing a category D weapon (counts 3 and 7), four counts of possessing a category H weapon (counts 4, 5, 6 and 8), one count of possessing a dangerous drug (count 9) and one count of possessing a dangerous drug, in excess of 50 grams (count 10).
3. [3]
   The learned sentencing judge imposed the following sentences:

   1. (a)
      12 months imprisonment in respect of each of counts 1 and 2;
   2. (b)
      3 years imprisonment in respect of each of counts 3 to 8;
   3. (c)
      12 months imprisonment in respect of count 9;
   4. (d)
      18 months imprisonment in respect of count 10.
4. [4]
   Convictions were recorded and each sentence of imprisonment was to be served concurrently.  The applicant’s parole release date was fixed as at the date of sentence.
5. [5]
   A pre-sentence custody certificate recorded that for the period between 11 February 2020 to 12 August 2021, 549 days could be declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) as time served under the sentence.  Her Honour declared 205 days as time served.
6. [6]
   The applicant applies for leave to appeal against sentence.  The application initially identified only one proposed ground of appeal namely that the sentence imposed was, in all of the circumstances, manifestly excessive.
7. [7]
   On 11 April 2023, when the application was first heard, it became apparent that counsel for the applicant sought to raise the ground of specific error in addition to the ground that the sentence was manifestly excessive.
8. [8]
   This necessitated an adjournment to permit the applicant to formulate amended grounds of appeal and to allow both parties to file further submissions.
9. [9]
   On 18 April 2023 the applicant filed an amended application which identified a further five grounds of appeal.
10. [10]
    Ground 2 states:

“The learned sentencing judge erred in fact in that her Honour misinformed herself on the evidence and material before her as to the extent and nature of the Appellant’s possession of the firearms and dangerous drugs that were the subject of Count 3 to 10 of the Indictment, and/or in her assessment of the Appellant’s overall criminality.”

11. [11]
    For the reasons which follow, the application for leave to appeal against sentence should be granted and the appeal allowed.  This Court is therefore required to exercise the sentencing discretion afresh.

The offending – agreed facts

12. [12]
    In 2017 a person resident in New South Wales purchased a white Mercedes Benz S 63s Coupe for $165,000.  It was stolen on 5 January 2019.
13. [13]
    On 14 June 2019 the applicant purchased the Mercedes for $55,000 from a supplier in New South Wales.  He had purchased cars from this supplier previously.
14. [14]
    On 17 July 2019 the applicant was pulled over by police while driving the Mercedes.  The registration plates attached to the motor vehicle were Victorian.  When questioned by police as to why the motor vehicle had Victorian number plates the applicant stated that he had recently purchased the motor vehicle.
15. [15]
    Subsequent to being intercepted by police the applicant raised the issue with the supplier.  On 11 November 2019 the supplier instructed the applicant to hand in the Victorian number plates and obtain new registration in two weeks.
16. [16]
    On 12 November 2019 the applicant attended the Queensland Department of Transport and Main Roads in order to deregister the Mercedes.  He returned the registration plates and received a refund for the remainder of the registration period.  He maintained possession of the Mercedes at his property.
17. [17]
    On 3 December 2019, the property was searched by police.  No registration plates were attached to the Mercedes which was in the garage.  The car keys were located on the kitchen bench inside the applicant’s house.  The VIN number on the side door did not match the VIN number on the engine.  The applicant informed police that the car was his “mates’” and that it was unregistered.
18. [18]
    At sentencing it was accepted that the applicant was taken to be in unlawful possession of the Mercedes (count 1) on the basis that following his conversation with the supplier on 11 November 2019 the applicant was aware that his continued possession of the Mercedes after this date was unlawful.
19. [19]
    Count 2 concerned the unlawful possession of a 2016 Toyota Hilux.  This vehicle had been purchased for $48,000 in 2017 and was stolen on or about 31 March 2019.
20. [20]
    On 25 June 2019 the applicant, after speaking to the supplier, purchased the vehicle for $15,000.  The applicant then on-sold the Hilux on 5 July 2019 for $28,000.
21. [21]
    The purchaser subsequently contacted the applicant because his mechanic had found a fake VIN number sticker on the engine which matched an interstate Toyota Corolla.  The Queensland Department of Transport and Main Roads was informed.
22. [22]
    The applicant thereafter contacted the supplier who requested the applicant to exchange his Holden Colorado utility with the stolen Hilux.  The applicant swapped his utility with the Hilux on 27 November 2019.  At sentencing it was accepted that when the applicant took possession of the Hilux on 27 November 2019 he was aware that his possession was unlawful.
23. [23]
    When police searched the applicant’s house and property on 3 December 2019, the keys to the Hilux were found on a chair in the applicant’s kitchen with the motor vehicle being “nearby”.^[1]
24. [24]
    The applicant informed police that the keys to the Hilux likely belonged to his mother-in-law’s car.
25. [25]
    In relation to counts 3 to 10 the relevant weapons and drugs were located in the Mercedes and the Hilux.
26. [26]
    A self-loading shotgun wrapped in a blue jumper was located in the boot of the Mercedes (count 3: possession of category D weapon).  A forensic examination of the jumper was conducted which identified the applicant’s DNA on the zip of the jumper.
27. [27]
    Police located a green cooler bag on the back seat of the Hilux.  This bag contained a 6-shot revolver (count 4: possession of category H weapon), one semi-automatic handgun (count 5: possession of category H weapon) and one homemade handgun (count 6: possession of category H weapon).
28. [28]
    Located on the backseat footwell of the Hilux was a black rifle bag which contained a self-loading centre fire rifle (count 7: possession of category D weapon).
29. [29]
    A black laptop bag was located in the glovebox of the Hilux which contained a silver 6-shot revolver wrapped in blue cloth (count 8: possession of category H weapon), one gram of cannabis (count 9: possession of a dangerous drug), a Coles bag with about 75 buprenorphine strips (count 9: possession of a dangerous drug), five vials of trenbolone, boldenone and testosterone, and a box containing ten ampules of nandrolone (count 10: possession of a dangerous drug).  The total combined weight of the steroid-type drugs was 51.213 grams.
30. [30]
    There was no evidence as to the circumstances by which the applicant came to be in possession of the weapons.  All of the weapons were operable.

Ground 2 – error as to the extent and nature of the applicant’s possession of the firearms and dangerous drugs

31. [31]
    The sentencing judge described the nature and extent of the applicant’s possession of the weapons in the Hilux as follows:

“Counsel, on your behalf, has submitted that this, in effect, was constructive possession of the weapons and drugs that were found in the Hilux vehicle.  I do note, however, that the agreed statement of facts evidences that you knew the nature of the guns in the Hilux, but I do take into account the fact that it is a constructive possession case.”^[2]

32. [32]
    Her Honour was mistaken in referring to the agreed statement of facts evidencing that the applicant “knew the nature of the guns in the Hilux”.  No such statement was made in the agreed facts.  This error however, arose from the sentencing submissions.
33. [33]
    Counsel for the applicant at sentencing submitted as follows:

“In terms of the guns and drugs that are located in the Hilux – which is all of the guns but the one that was in the white Mercedes – he is liable to those because he had custody and control over the vehicle within which they were located.  I should say this as well.  I understand – as long as I am careful in the way in which I frame my submissions, my learned friend takes no objection to the way which I seek to characterise this, as I have raised it with him in advance.  The Weapons Act, like the Drugs Misuse Act, has deeming provisions, as your Honour would be aware, as it relates to possession.

The Weapons Act is, for all intents and purposes, effectively the same as the occupier’s liability provisions of the Drugs Misuse Act.  That is, if you have essentially the ability to access or you have custody or control of a vehicle or a residence – like transpired here because the key was in his house, albeit he’d only had it for six days – then you’re liable for the contents of the vehicle, and that’s the case here.  So he, in my respectful submission, isn’t to be sentenced on the basis that he had any higher involvement in so far as the possession of the weapons and drugs than that.  He’s liable by operation of the extended definition of possession of under the Drugs Misuse Act.”^[3]

34. [34]
    In reply, the Crown prosecutor submitted as follows:

“… on the nature of the plea that’s been entered, the factual basis of the possession of guns in the Hilux.  He knew of – because he’s pleaded guilty to the elements of them – the nature and type of those guns.”^[4]

35. [35]
    The combination of these submissions created uncertainty as to the factual basis upon which the applicant was being sentenced.  Was he to be sentenced on the basis that he had possession of the weapons because the keys to the Hilux were located on a chair in his kitchen or on the basis that he had actual knowledge of the nature and type of the weapons in the Hilux?
36. [36]
    This uncertainty as to the factual basis upon which the applicant was sentenced extended to counts 9 and 10.  From the agreed facts, the basis of the applicant being in possession of the dangerous drugs arose from the circumstance that the keys to the Hilux were located by police on a chair in the applicant’s kitchen and the Hilux was located “nearby”.  In the sentencing remarks her Honour however, referred to the applicant being in possession of the dangerous drugs “for personal use”:^[5]

“In relation to the possession of drugs, as indicated previously, it is accepted that the possession of cannabis, Buprenorphine strips and steroids was for personal use.  While the amount of drugs on the aggravated count falls just over the aggravated amount of 50 grams, it would be at the lower end of criminality in these particular circumstances.” (emphasis added)

Neither the statement of agreed facts nor any submission made by defence counsel or the Crown prosecutor referred to the applicant’s possession of the dangerous drugs being “for personal use”.

37. [37]
    The criminality of the applicant’s offending, in unlawfully possessing the weapons and dangerous drugs in the Hilux, should have been assessed only on the basis that he was deemed to be in possession.  Her Honour’s reference to the applicant’s knowledge of the nature of the weapons and him being in possession of the dangerous drugs for personal use suggests that the applicant was sentenced on the basis that not only was he deemed to be in possession but that he was also knowingly in possession.
38. [38]
    Section 50(1) of the Weapons Act 1990 (Qld) provides that a person must not unlawfully possess a weapon.  The maximum penalty for this offence varies in accordance with the number and categories of weapons possessed.  In the present case the applicant pleaded guilty to being in unlawful possession of two category D weapons and four category H weapons.  Each of those offences carries a maximum sentence of seven years imprisonment.^[6]  The categories of weapons are defined in the Weapons Categories Regulation 1997 (Qld).  The definition of category D weapons in s 5 relevantly includes a self-loading shotgun.  The definition of a category H weapon in ss 7 and 7AA includes a firearm.
39. [39]
    Section 163(3A) of the Weapons Act provides:

“In relation to a charge involving the unlawful possession of a firearm under section 50, the person charged is to be taken to have been in possession of the firearm if there is proof that the firearm was, at the material time, in or on a place of which the person was the occupier or concerned in the management or control unless the person shows—

1. (a)
   that the firearm was brought to the place by someone who was authorised to have possession of the firearm; or

2. (b)
   that the person neither knew nor had reason to suspect that the firearm was in or on the place; or

3. (c)
   that someone other than the person had responsibility for the weapon.”

40. [40]
    The Drugs Misuse Act 1986 (Qld) contains similar provisions.  The offence of possessing dangerous drugs is created by s 9(1).  Section 129(1)(c) provides:

“(1)  In respect of a charge against a person of having committed an offence defined in part 2—

…

3. (c)
   proof that a dangerous drug was at the material time in or on a place of which that person was the occupier or concerned in the management or control of is conclusive evidence that the drug was then in the person’s possession unless the person shows that he or she then neither knew nor had reason to suspect that the drug was in or on that place; …”

41. [41]
    The effect of these deeming provisions is such that knowledge is not an element of the offences of unlawfully possessing weapons or dangerous drugs which the Crown is required to establish.
42. [42]
    In Tabe v The Queen^[7] Gleeson CJ and, in separate reasons, Callinan and Heydon JJ held that the concept of possession in s 9 of the Drugs Misuse Act did not involve, as an element, knowledge that the thing possessed was a dangerous drug.  The Court considered the predecessor to s 129(1)(c) of the Drugs Misuse Act, s 57(c), which was framed in identical language.  Gleeson CJ adopted the conclusion of Fitzgerald P in R v Clare:^[8]

“The clear tenor of the evidentiary provisions in s 57 of the Act is to reverse the onus to oblige an accused person who is proved to knowingly have the custody or control of the thing or substance which is a dangerous drug to prove that his or her ‘possession’ is innocent.”^[9]

43. [43]
    As to s 57(c) Callinan and Heydon JJ observed:^[10]

“Section 57(c) is concerned with possession and deals expressly with the relevance of knowledge.  To be concerned in the management or control of a place where the drug located is, pursuant to this section, to be in “possession” of the drug.  So much appears in terms in the first part of para (c) which then goes on to provide that unless an accused show that he or she neither “knew nor had reason to suspect that the drug was in or on that place”, he or she will be regarded as being in possession.  If knowledge were a necessary element of the charge that the prosecution was bound to prove, then the qualification in s 57(c) requiring the accused to show that he or she lacked the relevant knowledge, or had no reason to suspect the drug was in or on that place, would be unnecessary and anomalous.”

44. [44]
    The importance of identifying the correct basis upon which weapons or dangerous drugs are possessed is evident from a consideration of the decision of Keane JA (as his Honour then was) in R v Phan.^[11]  Keane JA in considering s 129(1)(c) of the Drugs Misuse Act observed:^[12]

“Section 129(1)(c) of the Act is concerned to facilitate proof of possession of a thing by an accused person.  It is not concerned to facilitate proof of possession of any specific kind or quantity of a dangerous drug.  Rather, it proceeds on the footing that the nature and the amount of the thing alleged to be in the possession of the accused, because it is in his or her management or control, will be proved in the ordinary way without reliance upon s 129.  When s 129(1)(c) speaks of “the drug”, it is necessarily referring to the thing deemed to be in the possession of the accused by the operation of s 129(1)(c) unless that operation is displaced by proof that the accused neither knew nor had reason to suspect that the drug was “in or on that place”.”

45. [45]
    His Honour continued:^[13]

“A person can be guilty of an offence against s 9 of the Act even though the offender does not know that the thing in his or her possession is a dangerous drug, it being sufficient that the thing is, in fact, a dangerous drug.  That being so, it is hardly surprising that s 129(1)(c), which is intended to facilitate proof of a contravention of s 9 of the Act, should operate to deem a person to be in possession of a thing, which is, in fact, a dangerous drug, even though that person does not know of the particular nature and quantity of dangerous drug.  Indeed, it would be incongruous if s 129(1)(c) did not have that effect.”

46. [46]
    In exercising the sentencing discretion afresh Keane JA distinguished “deemed possession” with “knowing possession”:

“It must, I think, be acknowledged that the sentencing of the appellant could not proceed on the basis that the appellant was knowingly in possession of any particular quantity of heroin, much less the quantity actually found on his premises.  The appellant could not be sentenced on the basis that he had any commercial purpose in relation to the heroin or even that he possessed the heroin for his personal use.  In terms of the subjective criminality of the appellant’s conduct, and the consequent need for personal deterrence, the highest that the case can be put against him is that he failed to take steps to ensure that any heroin which his brother had in the house was discovered and thrown away.  In terms of the desirability of imposing a sentence which is apt to provide for general deterrence and the protection of the community, the appellant’s offending could not be regarded as anything more serious than a failure to exercise greater diligence to ensure that his brother was not keeping drugs for his personal use in the premises.”^[14]

47. [47]
    The error identified in Ground 2 is established.

Exercising the sentencing discretion afresh

48. [48]
    The applicant’s criminality in relation to possessing the weapons and dangerous drugs found in the Hilux is to be assessed on the basis that he had deemed possession in that he had management or control of the Hilux because the keys to the vehicle were found on a chair in his kitchen.  He is not to be sentenced on the basis that he had actual knowledge of the nature and type of weapons nor of the type and quantity of the dangerous drugs.  Further his management or control of the Hilux arose in circumstances where the vehicle had only been located at his property for approximately six days from 27 November 2019 to the date of the police search, 3 December 2019.
49. [49]
    It must, however, be recognised that the unlawful possession of category D and category H weapons, including the category D weapon located in the boot of the Mercedes, constitutes serious criminal conduct.  Section 163(3A) gives the Weapons Act a broad reach.  This is consistent with the object of the Act which is to prevent the misuse of weapons.^[15]  That was recognised by this Court in R v Hansen.^[16]  Alan Wilson J (with whom Margaret McMurdo P and Fraser JA agreed) observed:^[17]

“The definition in the Queensland Weapons Act has, on its face, a broad reach.  Its language contemplates having present custody or control of a weapon but, also, extends to deem possession where there is present ability to obtain or claim custody.  It also, clearly, includes the circumstance that more than one person may be in possession of a weapon at the same time.

That broad construction and the extensive reach it connotes is consistent with the achievement of the principles of the Weapons Act, set out in s 3, which enshrine the notions that the possession of weapons is ‘…subordinate to the need to ensure public and individual safety’ and that ‘public and individual safety is improved by imposing strict controls on the possession of weapons’.”

50. [50]
    The applicant’s criminality in relation to the unlawful possession of the Mercedes and Hilux is to be assessed in the context outlined in the statement of facts.  He became aware that he was in unlawful possession of the Mercedes on 11 November 2019 and of the Hilux on 27 November 2019.  The applicant had paid $55,000 for the Mercedes and $15,000 for the Hilux.  He has been unable to recoup these funds and has as a result suffered financial prejudice.
51. [51]
    The applicant was 33 at the time of the offending and 34 as at the date of the original sentence.
52. [52]
    His plea of guilty is a timely plea which has assisted the course of justice and is to be taken into account.
53. [53]
    He has both a Queensland and New South Wales criminal history.  The applicant’s Queensland history has five entries.  The first four are for minor offending committed between 2004 and 2014.  This minor offending was all dealt with in the Magistrates Court.  The applicant was however dealt with in the Supreme Court on 12 December 2014 when he was sentenced by Byrne SJA for four drug offences.  They included possession of 2.36 grams of methylamphetamine and 0.502 grams of amphetamine and a further count of possessing 3.901 grams of methylamphetamine.  He received a head sentence of 13 months but was granted immediate release on parole.  A report of a psychologist, Mr Stoker, was tendered before Byrne SJA.  His Honour referred to this report, noting that the applicant had some prospects of successfully remaining drug free.
54. [54]
    The report of Mr Stoker, which is dated 4 December 2014, was not tendered before the sentencing judge.  Counsel for the applicant, in further written submissions filed on 15 May 2023, applies instanta for Mr Stoker’s report to be received as fresh evidence.  As the report was before Byrne SJA when previously sentencing the applicant, it is appropriate that the Court receive and consider Mr Stoker’s report not as fresh evidence but as new evidence.
55. [55]
    As to the New South Wales criminal history, on 12 December 2016 the applicant was sentenced in the Parramatta District Court for six offences.  These included two offences for possessing or using a prohibited weapon without permit, two common assault offences, one of use of an offensive weapon with intent to commit indictable offence and firing a firearm in a manner likely to injure persons or property.  The head sentence imposed was four years and six months with a non-parole period with conditions of 27 months.  The offending involved the applicant confronting his estranged father at his childhood home over a dispute related to the treatment of the applicant’s mother during the course of his parents’ marriage.  The incident included the applicant discharging a firearm into the roof of his father’s house.  Mr Stoker in his report refers to the applicant’s parents separating when he was nine and his father being a violent man who both physically and emotionally abused the applicant’s mother.
56. [56]
    The applicant’s New South Wales criminal history gives rise to three relevant considerations.  First, like the present offending, the applicant was in unlawful possession of weapons.  Secondly, being in possession of a weapon and discharging that weapon in the context of a dispute with his estranged father is serious conduct.  Thirdly, the present offending was committed whilst the applicant was still subject to the parole order made by the Parramatta District Court.  As at 3 December 2019, that order had another nine days before it expired.
57. [57]
    As the applicant has committed previous offences involving weapons, there is a need for both personal and general deterrence.
58. [58]
    The applicant was educated to Year 12 and has completed a school based apprenticeship in information and technology.  While not in custody, he had a good work history, being employed in both the financial and security sector and later in the construction industry.  He founded his own company in 2017 which specialises in construction and excavation.  He has been married for approximately 15 years and is the father of three young children.
59. [59]
    According to Mr Stoker’s report, the applicant, as at 4 December 2014, had a past history of drug use, having taken methylamphetamine for approximately six months and been a smoker of cannabis.  Mr Stoker considered as at 2014 that the applicant suffered from post-traumatic stress disorder secondary to witnessing his violent father’s abuse of his mother.
60. [60]
    As to pre-sentence custody, as already observed, the pre-sentence custody certificate records that for the period between 11 February 2020 to 12 August 2021, 549 days could be declared pursuant to s 159A of the Penalties and Sentences Act as time served under the sentence.  The learned sentencing judge declared 205 days which were the agreed number of days which the applicant, through no fault of his own, spent in solitary confinement.
61. [61]
    Counsel for the applicant informed the Court that the applicant has been charged with other serious offences to which he intends to plead not guilty.  The respondent submits that in exercising the sentencing discretion afresh, the Court should declare the whole of the 549 days.  This would be in accordance with the principle identified in R v Fabre^[18] that pre-sentence custody should be declared at the earliest opportunity.  The important consideration behind this principle was considered by Morrison JA (with whom Fraser JA and Peter Lyons J agreed) in R v MKL:^[19]

“… reliance upon a view that the applicant would probably be convicted of the other alleged offences, in respect of which his counsel had signalled his intention to plead not guilty, was inconsistent with the presumption of innocence to which the applicant was entitled.”

62. [62]
    Counsel for the applicant submits that following on from the 2020 amendment to s 159A(1), the principles considered in Fabre no longer apply:^[20]

“Indeed, it is the case that there is now a broad statutory discretion that empowers sentencing judges to remedy the mischief which the implied power ‘to take the time served into account in arriving at the appropriate sentence’ evolved to answer, then it may be that in an appropriate case this Court may choose appropriately to consign these long standing principles to the ‘annals of legal history’ in the State of Queensland.” (footnotes and emphasis omitted)

63. [63]
    The amendment to s 159A(1), as considered by Bowskill J (as the Chief Justice then was) in R v Whitely,^[21] bestows a broad discretion which extends to a power to formally declare time served even where that time is served under a previously imposed sentence.  The amendment does not, however, affect the principle identified in Fabre.
64. [64]
    In R v Wilson^[22] Fraser JA (with whom Morrison JA and North J agreed) considered the 2020 amendment to s 159A(1) and the decision in R v Whitely.  His Honour observed:^[23]

“… the better construction [of s 159A(1)] is that there is no preferred or prima facie position.  The same statutory language is used to authorise the making of each form of declaration and the section does not express any guidance for the way in which the discretion to make a declaration should be exercised.  In these circumstances, the amendment seems designed to increase the flexibility allowed to sentencing courts to structure sentences in ways that facilitate the imposition of a just penalty in conformity with applicable statutory provisions and common law sentencing principles that are consistent with those provisions.”

65. [65]
    While is it not mandatory to always declare time at the earliest opportunity, much will depend on the particular circumstances.  In the present case where the applicant is facing further serious charges and the Court is informed that he will be pleading not guilty, the principle in Fabre applies with full force.  Given the presumption of innocence if the applicant is subsequently acquitted, he would lose the benefit of pre-sentence custody being declared at the earliest opportunity.  This remains the orthodox approach in circumstances where the applicant is intending to enter pleas of not guilty to further charges.
66. [66]
    Another consideration in relation to the pre-sentence custody is the fact that 205 days was served by the applicant in solitary confinement.
67. [67]
    The circumstances of the applicant’s solitary confinement were considered by Freeburn J in Re Atasoy.^[24]  His Honour was considering the applicant’s second application for bail.  Those circumstances included the applicant being held in pre-sentence custody in Northern Queensland while his wife and three children were resident in Brisbane.  The applicant had also been in pre-sentence custody throughout the period of the COVID-19 pandemic.  He has consistently been the subject of safety orders which meant that he was removed from the mainstream prison population and kept in solitary confinement.  It is not readily apparent why the applicant was subject to 205 days of solitary confinement, but there is no suggestion that it was through any fault of his own.
68. [68]
    In R v Free; Ex parte Attorney-General (Qld)^[25] this Court considered how solitary confinement should be treated:

“The appropriateness of considering this as a factor in the exercise of the sentencing discretion was confirmed by the Court of Appeal in R v Thorburn [2017] QCA 278, [41].  However, in R v O'Sullivan and Lee; Ex parte Attorney-General (2019) 3 QR 196, 245–246 [156] there is a reminder that the mitigatory effect of being held in a protected part of a prison depends upon proof that incarceration in such a place is, for particular reasons, more onerous than being kept in the general population of a prison.” (footnotes omitted)

69. [69]
    In Callanan v Attendee X^[26] Applegarth J observed that in arriving at an appropriate punishment, a court can make allowance for the fact that a person has spent part of their time in custody in unusually harsh circumstances.
70. [70]
    In R v Thorburn^[27] this Court endorsed an adjustment to the sentence in circumstances where part of the pre-sentence custody had been served in solitary confinement:

“The sentencing Judge made clear in the following paragraph that the sentence to be imposed would give credit for the fact the applicant had served essentially all of his time on remand in solitary confinement.  Further, such a factor was appropriately to be considered in the circumstances.  That credit was specifically reflected in a reduction of the head sentence by six months imprisonment.  Such reduction was well within a proper exercise of the sentencing discretion in all of the circumstances.”

71. [71]
    As the applicant has served 205 days in solitary confinement whilst on remand, it is appropriate that this be taken into account in imposing an appropriate sentence.  This is not a mathematical exercise.  As observed by this Court in R v KAX:^[28]

“It is consistent with principle to make an allowance in favour of the person being sentenced for unduly harsh conditions of imprisonment, but there is no fixed formula to apply in assessing what is an appropriate allowance in all of the circumstances:  R v Phillips (2008) 188 A Crim R 133 at [43]-[46].”

72. [72]
    The overall criminality of the applicant’s offending for all counts is appropriately reflected by a global head sentence of two years for each of counts 3 to 8.  This head sentence reflects, in particular, the applicant’s timely plea of guilty and the fact that he has spent 205 days of pre-sentence custody in solitary confinement.  The sentence of two years also reflects the circumstances in which the applicant came to be in unlawful possession of the two motor vehicles and the fact that he was deemed to be in possession of the weapons and drugs found by police in the Hilux because of the keys being located on a chair in his kitchen.  While it is an aggravating factor that the offending occurred in circumstances where the New South Wales parole order still had nine days to run, a sentence of two years appropriately reflects the need for both general and personal deterrence.

Disposition

73. [73]
    I would propose the following orders:

1. Application for leave to appeal against sentence granted.
2. Appeal against sentence allowed.
3. Set aside the sentences of three years imprisonment for each of counts 3 to 8 imposed below.
4. The applicant is sentenced to imprisonment for two years for each of counts 3 to 8, with such sentences to commence from 12 August 2021.
5. The sentences of imprisonment of two years for each of counts 3 to 8 are to be served concurrently with each other and with the sentences of imprisonment previously imposed for counts 1, 2, 9 and 10.
6. Set aside the declaration made pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) that the 205 days which the applicant served under the safety order, be declared as time served.
7. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it is declared that 549 days spent in pre-sentence custody between 11 February 2020 and 12 August 2021 is time taken to be imprisonment already served under the sentence.
8. The parole release date remains fixed at 12 August 2021.

74. [74]
    CROW J:  I agree with Flanagan JA.