R v Abdullah[2023] QCA 189

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  At the time of the offences the subject of this application, the applicant was a 52 year old man who worked part time as a tow-truck driver.  On two separate occasions, separated by less than three months and a police charge and grant of bail, he sexually assaulted young women, strangers to him, at their homes, whilst he was negotiating with them about a price for their cars.  On 1 August 2023, he was convicted on his pleas of guilty of two counts of sexual assault and sentenced to 18 months’ imprisonment for one and a concurrent term of 12 months for the other, with the sentences to be suspended after he has served five months.  He applies for leave to appeal the sentences on the grounds of an error of fact and of manifest excess.
2. [2]
   Because of the short duration of actual custody imposed, this application was brought on for hearing urgently.  It is therefore also appropriate that it be determined quickly.  The applicant’s criminal behaviour was predatory, intimidatory and completely unacceptable.  No error of fact as contended was made.  The repeated offending called for a strong penalty, to send a message of denunciation and both general and personal deterrence, as well as in the interests of community protection.  The sentences imposed were not manifestly excessive.  I would refuse the application.
3. [3]
   The sentencing hearing proceeded on the basis of an agreed statement of facts.  The first offence was committed on 22 October 2021.  The first complainant (Ms W), who was 18 at the time, was at home, with her boyfriend.  Her car was parked in front of her house.  The applicant spontaneously drove past and noticed the car.  He parked his tow-truck outside the house, went to the house and spoke to the complainant.  He offered to buy the car for $250; the complainant declined.  The applicant then stepped closer to her and offered her $350, which she also declined.  He then moved closer to the complainant until their shoulders were touching.  He wrapped his arms around her shoulders, looked her up and down, and said she was wearing nice clothes and that she should sell her car so she could continue buying nice clothes.  The complainant felt uncomfortable and stepped back.  The applicant stepped closer to her and wrapped his arms around her waist.  He tried to kiss the complainant on the cheek and moved his mouth toward the right side of her face.  The complainant pushed him away.  The applicant stepped forward and brushed his hand up her thigh, to her bottom and left breast.  The complainant’s dog bit the applicant and he then walked away to his tow-truck and left the house.
4. [4]
   The complainant reported the offending to the police that day.  Once the applicant was identified, he was charged on 12 November 2021 and released on bail that day.
5. [5]
   The second offence was committed on 13 January 2022.  The complainant in respect of this offence (Ms P) was 21 at the time.  She had made arrangements to sell her partner’s car to a particular entity for $700.  Arrangements were made for a tow-truck driver to come to her home to collect the car.  The applicant was that tow-truck driver.  He arrived at the complainant’s house and met her outside.  He disputed the $700 sale price and offered $500 to buy the car instead.  The complainant declined.  The applicant continued to negotiate the purchase of the car and, whilst doing so, stood very close to the complainant, making her feel uncomfortable.  The applicant eventually agreed to pay $700 for the car.  They completed the paperwork and, as the applicant was handing the complainant the receipt, he grabbed her and pulled her in for a hug, firmly pressing her body up against his.  The applicant had one hand on the complainant’s lower back just above her bottom, and his other hand slightly above.  He tightened his grip and kissed the complainant multiple times on her right cheek and tried to kiss her on the lips.  The complainant managed to step back, and quickly went back inside her house.  The applicant yelled “thank you” multiple times as she walked away.
6. [6]
   This complainant also reported the offending that day.  Once identified, including by reference to his phone number, the applicant was charged on 23 February 2022.  This time he was remanded in custody; but only for one day, as he was released on bail the following day.
7. [7]
   There was evidence from the second complainant, Ms P, about the impact the offence had on her.  She spoke of feeling unsafe in her own home, and feeling afraid of the applicant returning, as he knew where she lived at that time.  She described feeling anxious when put in situations with people she does not know, scared of something similar happening again and spoke of the impact on her as someone who previously saw herself as strong and independent.  There was no evidence from the first complainant, Ms W.
8. [8]
   The applicant had no prior criminal history.  At the sentencing hearing, the applicant relied upon a report from Dr Palk, a forensic psychologist.  When interviewed by the psychologist, the applicant “denied his actions were sexually motivated”, seeming to indicate that he was “showing appreciation” to the complainants.  Dr Palk rationally did not accept this, saying that his behaviour appeared sexually motivated and, later in the report, that the “main contributing factor appears to be sexual motivation”.  Dr Palk also described the applicant as lacking insight into the inappropriateness of his behaviour.  This, notwithstanding he was also described as being of above average intelligence.
9. [9]
   Dr Palk said it was “difficult to assess the level of a possible underlying deviant sexual arousal, if any”, because of the applicant’s denial of sexual motivation for his offending.  Nevertheless, he also said that the applicant “impresses as being a low risk for further sexually related offences”, but that the applicant “requires education and counselling to address his lack of insight into his offending”.  In the concluding paragraphs of his report, Dr Palk said:

“The writer is optimistic that if Mr Abdulla cooperates with psychological therapy and develops a comprehensive sexual offence relapse prevention plan, he should be able to regulate any deviant sexual arousal and avoid re-offending.  However, relapse can occur if the offender becomes uncooperative with treatment.”

and

“In the writer’s opinion, Mr Abdulla’s risk of reoffending is low so long as he co-operates with psychological therapy.”

10. [10]
    Dr Palk outlined the applicant’s family and social background.  He was born in Afghanistan and is educated – having completed both high school and university studies, including a PhD in Islamic Studies in 2009.  He worked as a lecturer, but due to uncertainty of academic work and threats to his family life in Afghanistan, he migrated to Australia with his wife and four children in 2014.  They also have two more children who were born in Australia.  He is now an Australian citizen.  Dr Palk said there “was evidence of PTSD due to his experiences in Afghanistan as well as adjustment problems” due to settling in different countries.  There is no suggestion in Dr Palk’s report of any link between either of those conditions and the sexual offending.
11. [11]
    At the sentencing hearing, the prosecutor submitted the appropriate sentence was in the range of 18 months to two years’ imprisonment, relying upon R v Bradford [2007] QCA 293, R v Murray [2005] QCA 188 and R v Quinlan [2012] QCA 132.  The prosecutor also submitted that “[g]iven the repetitive nature of his offending, in my submission, it’s open for the court to require him to serve actual time in custody but I certainly don’t suggest that the authorities demand that”.
12. [12]
    Counsel for the applicant below pressed for a sentence that did not involve any actual time in custody and submitted that a 12 month probation order with no conviction recorded would be appropriate; or else a 12 month sentence of imprisonment, wholly suspended, for what was described as “relatively low-level offending”.  For the applicant, it was emphasised that he is a mature man, with no previous convictions, that he has been married for 22 years and has six children, does not drink alcohol or use drugs, has no mental health problems and is an “outstanding member of the Afghan community”.  He was not working at the time of the sentence, and was said to be “hoping to go on a pilgrimage in the near future”, but had put that on hold pending the outcome of the criminal proceedings.
13. [13]
    After outlining the facts of the offending, the learned sentencing judge appropriately observed that “[t]his would have been a shocking and traumatic experience for both women, who were just going about their ordinary business when they were sexually assaulted.  This is not an isolated, aberrant act, but a course of conduct.”
14. [14]
    His Honour also said “[t]he victims have suffered harm and been adversely affected as a result of your offending.  I have read and take into account the statement of [Ms P]… setting out the substantial effect the offending had and continues to have for her”.
15. [15]
    The sentencing judge also observed that the applicant was on bail for the first offence when he committed the second offence.  After referring to the psychologist’s report, the sentencing judge noted that the applicant had not engaged in any treatment or therapy, before imposing the sentences referred to.

Ground 1

16. [16]
    The first ground on which the applicant seeks leave to appeal the sentence is that the sentencing judge “erred in concluding that the count 1 complainant had ‘suffered harm and been adversely affected’ as a result of the offending”.
17. [17]
    The argument is that, in the absence of a victim impact statement from Ms W, the court could not find that Ms W had suffered harm and been adversely affected as a result of the applicant’s offending.
18. [18]
    For this argument, counsel for the applicant relies on s 9(2)(c)(i) and s 179K(5) of the Penalties and Sentences Act 1992, together with s 132C(5)(c) of the Evidence Act 1977.
19. [19]
    Section 9(2)(c)(i) of the Penalties and Sentences Act provides that in sentencing an offender a court must have regard to the nature of the offence and how serious the offence was, including “any physical, mental or emotional harm done to a victim, including harm mentioned in information relating to the victim given to the court under section 179K” (emphasis added).
20. [20]
    Section 132C deals with fact finding on sentencing, and provides, by s 132C(2), that a sentencing judge may act on an allegation of fact that is admitted or not challenged.  The phrase “allegation of fact” is defined in s 132C(5) to include information or submissions for sentence under s 15 of the Penalties and Sentences Act, information given to the court under s 179K of the Penalties and Sentences Act and “other information or evidence”.
21. [21]
    Section 179K deals with the manner in which a victim of an offence may give the prosecutor details of the harm caused to them by the offence, where the victim wishes to do that.  It is plain from reading s 179K as a whole that the wishes of the victim are important.  There is no requirement for details of the harm caused to a victim to be provided.  Importantly, s 179K(5) provides that “[t]he fact that details of the harm caused to a victim by the offence are absent at the sentencing does not, of itself, give rise to an inference that the offence caused little or no harm to the victim”.
22. [22]
    The applicant relies upon that provision to submit that “the practical effect of this provision is to neutralise this factor as a sentencing consideration”.
23. [23]
    That submission is rejected.  That is not the effect of s 179K(5).  Merely because a victim does not wish to provide a victim impact statement does not prevent the court from either acting on a submission that the offence nevertheless may be inferred to have caused harm, nor from forming a view – having regard to the circumstances of the offence – as to whether the offence may have caused harm.  For this purpose, “harm” means physical, mental or emotional harm (see s 179I).  The express statement in s 179K(5) that an absence of impact “cannot be inferred” necessarily carries with it the notion that the presence of (some, or even significant) impact may be inferred.
24. [24]
    In this case, the prosecutor did submit to the sentencing judge that the offending had a significant impact on Ms P, as expressed in her victim impact statement and, by reference to s 179K(5), submitted that “it cannot be inferred that the offending had little or no impact on” Ms W.
25. [25]
    The sentencing judge’s finding, that Ms W suffered harm and was adversely affected as a result of the applicant’s offending, was plainly open, having regard to the circumstances of the offending.  His Honour properly observed that “this would have been a shocking and traumatic experience for both women, who were just going about their ordinary business when they were sexually assaulted”.  To that must be added – just going about their ordinary business at their own homes.  Ms W was a young woman, only 18 at the time, sexually assaulted outside her own home, by the much older applicant, 52 at the time, who had spontaneously stopped outside her house in his tow-truck and started trying to negotiate to buy her car.  The sexual assault was brazen, was not fleeting, and involved some persistence by the applicant, in the face of the complainant stepping away, moving and trying to push him away.  It may readily be inferred that such a shocking, frightening and intrusive experience would have caused her harm and adversely affected her.
26. [26]
    The sentencing judge did not make a finding as to any degree of harm suffered by Ms W;^[1] he merely said that she suffered harm and was adversely affected.  The circumstances of the offence amply justified such a finding.
27. [27]
    As it is to be assumed this ground was identified by the applicant’s lawyers on this application, and not him, it should not be held against him, for example, as a further indication of his lack of insight into the serious nature of his offending.

Ground 2

28. [28]
    The applicant also contends the sentence imposed was manifestly excessive.  As is well-established, to succeed on an application on this ground it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters.  It is necessary to demonstrate that the difference is such that there must have been a misapplication of principle, or that the sentence is “unreasonable or plainly unjust”.^[2]
29. [29]
    On this appeal, the applicant submits that the sentences imposed did not recognise the low level of offending and that a sentence of no more than nine months, wholly suspended, was warranted (a lower penalty of imprisonment than that submitted by the applicant’s counsel below).
30. [30]
    On my review of the authorities relied upon below, and having regard to the additional cases cited on this application, given the factual circumstances of this case it cannot be said the sentence was manifestly excessive.
31. [31]
    In R v Bradford [2007] QCA 293, the offender pleaded guilty to three counts of sexual assault.  He was sentenced to 12 months’ imprisonment on each count, with parole eligibility after serving five months.  Bradford was 29 at the time; the complainant was his 18 year old step-sister.  The conduct involved: asking the complainant to expose her breasts while they were driving in a car and, when she refused, placing his hand inside her shirt and bra and touching her breast (first count); on the same occasion, then putting his hand between her legs, and rubbing outside her pants (second count).  She did not make a formal complaint at that time.  Nine months later, Bradford accosted the complainant when she was at home, having just come out of the shower, attempting to engage in “sexual banter”, then picking up an electric razor, switching it on and placing it against the complainant’s breast outside her clothes (third count). Bradford had no prior criminal history; had not reoffended on bail for a “very extended period”, had a good work history and the care of his four year old child.  On the appeal, it was accepted that the sentence was manifestly excessive, having regard to comparable cases.  It was noted that a wholly suspended sentence, or a sentence suspended after a shorter period of time, would have been appropriate.  As it was, the sentence of 12 months was suspended at the date of the appeal, which was after Bradford served three months.
32. [32]
    There are some important distinguishing features between this case and Bradford, namely:  there are two complainants here; who were both strangers to the applicant; he offended twice, despite being arrested, charged and released on bail after the first incident; he minimised his conduct, denying it had any sexual element to it, thus showing a distinct lack of insight; and had not begun the therapy which was linked to the assessment of his risk of reoffending by the reporting psychologist between the date of his interview by the psychologist (4 May 2023) and the date of his sentencing (1 August 2023).  For those reasons, in my view, a wholly suspended sentence would not have been appropriate in the present case.
33. [33]
    In R v Murray [2005] QCA 188, the offender was intoxicated when he confronted a woman walking on the opposite side of the street, propositioned her and then “unexpectedly reached down, and with some force, rubbed his hand against her vagina on the outside of her jeans”.  As the complainant tried to push his hand away, he pushed more forcefully and then slid his hand up and squeezed her breast forcibly.  He was originally sentenced to two and a half years’ imprisonment, with a recommendation for parole release after serving nine months for that offence, together with lesser concurrent penalties on an unrelated stealing charge committed about four months earlier, and charges of public nuisance and consuming liquor in public.  Murray was 23 at the time of the offences, and had a criminal history for property, motor vehicle and drug offences.  He had also, about nine years earlier (so presumably when a juvenile) been convicted of an “indecent act”.  On the appeal, it was accepted that the sentence of two and a half years was manifestly excessive, in light of comparable authorities.  It was said that a sentence of 18 months was a more appropriate “starting point”.  However, as Murray was not considered an appropriate candidate for a suspended term of imprisonment, and the only way for his pleas and other matters in mitigation to be taken into account was by a reduction of the head sentence, the sentence was reduced to one of 15 months.
34. [34]
    It may be accepted that the assault in Murray was worse – but again, there are two complainants here and the second offence was committed while the applicant was on bail for the first offence.  Those matters support the imposition of a similar head sentence in the present case.
35. [35]
    R v Quinlan [2012] QCA 132 involved a taxi driver, convicted after a trial of one count of sexual assault.  He was sentenced to six months’ imprisonment, suspended after seven weeks.  Quinlan was 56 at the time he offended against a 25 year old complainant who was a passenger in his taxi.  After the complainant’s male friend got out of the taxi at an earlier stop, the taxi driver said to her “you’ve got a nice set of lungs on you”, then asked if that was okay.  As the complainant did not know what he meant, she said “ah yeah, okay”, after which Quinlan put his hand on and squeezed her breast.  Quinlan was described as a person of otherwise good character, with no prior convictions, who committed the offence in a “moment of madness”.
36. [36]
    In contrast to Quinlan, here the offending cannot be described as a “moment of madness”, given the manner in which the applicant persisted, against the first complainant, even when she tried to move herself away, and push him away; and, more importantly, given that he committed a second offence, in almost identical circumstances, despite having been charged and released on bail.  A higher penalty, including in relation to the custodial component, was justified here.  Whilst it was said in Quinlan that the fact the person was a taxi driver was a particularly aggravating factor, it is also an aggravating feature of the applicant’s offending that he was a tow-truck driver, who was present at the homes of the two complainants while transacting or attempting to transact business, when he offended against both of them.  They ought to have been able to feel safe, at their own homes, from the threat of being randomly sexually assaulted by a person coming to their homes for what otherwise ought to have been a purely business transaction.
37. [37]
    Those cases, which were placed before the sentencing judge, support the conclusion that the sentences imposed at first instance were well within the sound exercise of the sentencing discretion.
38. [38]
    The additional cases cited by the applicant on this application do not suggest any different conclusion ought to be reached.
39. [39]
    R v Hatch [1999] QCA 495 involved a far more serious example of sexual assault, but must be seen to be a relic of its time – that offender would now be charged with digital rape, given the facts described.  R v Demmery [2005] QCA 462 and R v Murphy [2011] QCA 363 are also quite different cases.  In Demmery the 16 year old complainant in that case had, on the facts described, left a party with the offender to go to the shops.  After returning from the shops, they both lay down in the back of his utility, kissed twice and then she fell asleep.  While she was asleep, he had pulled her underwear to the side and then masturbated and ejaculated over her vulval area.  He was originally sentenced to two years’ imprisonment, to be suspended after six months.  That was reduced, on appeal, to 12 months, suspended after the 25 days he had served.  The offending in Murphy was more physically invasive than here, involving the heavily intoxicated offender entering the complainant’s and her boyfriend’s bedroom three times, with another person, and on the third time sexually assaulting the complainant forcefully, under her clothes and underwear, as she screamed at him to get out.  He was a much younger offender, who had a bad criminal history.  He was sentenced to only six months’ imprisonment, but importantly that was imposed cumulatively on a previous sentence.
40. [40]
    The applicant also emphasised R v Al Aiach [2007] 1 Qd R 270 and R v Baldwin [2014] QCA 186.  In Al Aiach, the offender was sentenced to 12 months’ imprisonment, suspended after serving four months, having pleaded guilty to multiple counts of sexual assault committed against four teenaged female employees who worked for him in his pizza business.  He was 49 and had no criminal convictions, described as a “generous, hard working and family-orientated man within a close-knit migrant community”.  Whilst the circumstances of that case are more serious than the present, including because the complainants were younger and there were four of them, favourably to Al Aiach he had sought assistance from a psychologist following his arrest and he did not reoffend whilst on bail.
41. [41]
    In R v Baldwin, the 39 year old offender was convicted after a trial of one count of sexual assault committed against a 20 year old complainant.  The offence was committed in the course of interactions between them as a result of the complainant considering taking up a room to rent in a house also occupied by Baldwin.  Baldwin persistently made attempts to embark on a more intimate relationship with the complainant, which she rebuffed.  Those attempts included putting his hand on her leg, hugging her and, on another occasion, putting his hand on her leg and attempting to move it up, under her dress.  Baldwin had no previous convictions, and relied upon evidence of a psychologist that, as a result of a severe head injury some years before, he had suffered a decline in his general level of cognitive functioning.  The sentencing judge found the offending was at a low level, he had stopped when the complainant protested and the offending was “probably opportunistic”.  Taking the psychological material into account, Baldwin was sentenced to three months’ imprisonment, wholly suspended.  This appears to be a lenient sentence, but perhaps reflects a view of the factual circumstances formed by the sentencing judge having heard the evidence at the trial.  In contrast to the present case, there was only one complainant and no further offending in breach of bail.
42. [42]
    The respondent emphasised two more recent decisions, R v Sologinkin [2020] QCA 271 and R v Rogan [2021] QCA 269.  The complainant in Sologinkin was a female croupier, at work in a casino, when the offender walked past her, appeared to bump into her, and assaulted her by touching her in her genital area, over her pants.  He was convicted following a trial, at which he contended any touching was accidental and unintentional.  Sologinkin was 39 at the time of the offence, with no criminal history and otherwise of good character.  The offending was described as “a crude and opportunistic sexual offence by a man of mature years against a vulnerable woman in her workplace”.  He was sentenced to four months’ imprisonment, wholly suspended.  Again, I would regard that as a lenient sentence.  The respondent emphasises the “fleeting” nature of the offending in Sologinkin, which occurred on one occasion.
43. [43]
    In Rogan, the offender and complainant were known to each other and both attended a party at the home of a mutual friend.  In the early hours of the morning, the party was coming to an end, and a few of the guests decided to spend the night there.  Pull-out sofa beds were set up in the loungeroom.  Rogan was very drunk.  After he and the complainant lay down, Rogan sexually assaulted the complainant in an invasive manner, such as to cause her to say to the host, after her scream had brought their attention, that he had “tried to have sex with” her.  He pleaded guilty and was originally sentenced to 12 months’ imprisonment, to be suspended after serving two months.  That was varied on appeal, so that the sentence was suspended after the (approximately) 12 days he had then served.  Rogan was 36, had no criminal history and an excellent employment history.  He had engaged in psychological counselling prior to the sentence, and had given up drinking alcohol – which was identified as a causal factor in relation to his offending.  He was said to have demonstrated shame and real remorse; and the court was able to conclude that he was unlikely to reoffend.  President Sofronoff, with whom the other members of the Court agreed, observed that “a sentence that includes an actual period of imprisonment is not always required in cases like the present, in which an offender’s criminal acts are out of character, in which there is real remorse, and in which there has been a timely plea of guilty” at [18].  The respondent emphasises the role that intoxication played in Rogan’s offending, noting that it does not excuse but may explain the conduct, and that there was evidence of real remorse and insight in this case, as important distinguishing features.
44. [44]
    Whilst the physical invasion of the sexual assaults perpetrated by the applicant in the present case are objectively less serious than those which involve assaults under a complainant’s clothes and underwear, there are a number of relevantly aggravating factors in this matter.  These include that the complainants were both much younger than the applicant; he was a stranger to them; he offended against them outside their homes, having come to their homes in his capacity as a tow-truck driver – in the first case, unannounced, and in the second in response to a planned sale of a car; the fact that there are two complainants and, significantly, that the second offence was committed after the applicant had been arrested, charged and released on bail for the first; the lack of insight apparent from the psychologist’s report; and the absence of any steps taken, as suggested by the psychologist in his report, to undertake counselling to address the offending.
45. [45]
    Had the applicant been convicted only of the first offence, the penalty would necessarily have been considerably lower and there would have been a strong argument, based on the authorities referred to, that the requirement to serve any time in actual custody was not warranted.  The fact that, having done that, and been made aware of the criminality of his conduct by being arrested and charged and released on bail, the applicant nevertheless proceeded to commit the offence a second time, in almost identical circumstances, is concerning and brings to the fore considerations of deterrence, denunciation and community protection.  That is only compounded by his denial that the conduct had any sexual motivation.  As counsel for the respondent submitted on this application, the applicant should have been deterred by the first charge and grant of bail, and gained some insight into the inappropriateness and unlawfulness of his behaviour.  That he was not and did not raises a concern as to his inability to control his own behaviour and actions.
46. [46]
    To the extent there is a difference between the penalty imposed in this case, and the others to which this court has been referred, that is not such as to demonstrate that there has been a misapplication of principle, nor that the sentence is unreasonable or plainly unjust.  The difference is explicable.  A review of the authorities does not support the conclusion that the overall head sentence of 18 months’ imprisonment – representative of the criminality involved in committing these two, separate offences – was manifestly excessive, given the circumstances of this case, already outlined above.
47. [47]
    In addition, the requirement for this applicant to serve five months of that in custody, before the balance was suspended, is not unjust or unreasonable.  The circumstances of the offending and this offender – notably, the further offending whilst on bail, his minimisation evident from the psychologist’s report and the failure yet to have taken any therapeutic steps to address the offending – are such that appropriate punishment, deterrence, strong denunciation of the conduct and community protection all justified an order that he serve part of the sentence in actual custody.  This was not a case in which a wholly suspended sentence was appropriate.  The portion required to be served reflects the orthodox approach, on a plea of guilty, of requiring an offender to serve around one-third of the sentence imposed.  That another judge may have suspended the sentence at an earlier time is not such as to demonstrate error.
48. [48]
    The applicant emphasises the prosecutor’s submission, below, to the effect that it would be open to wholly suspend any sentence imposed.  It is submitted the sentencing judge misinterpreted the prosecutor’s submission, as a submission that the applicant “should serve some time in actual custody”.  Having regard to what the prosecutor actually submitted – referred to in paragraph [11] above – I do not consider there was any misinterpretation.  It was the prosecutor’s primary submission that a period of actual custody was called for, whilst also properly alerting the sentencing judge to the fact the authorities did not “demand” that.  As already mentioned, given all the circumstances of these offences, and this offender, in my view it was appropriate that a period of actual custody be ordered.
49. [49]
    Finally, it is said there was an error in the declaration of pre-sentence custody that was made (that it should have been two days, rather than one).  This seems to be on the basis that the applicant had spent one day and two hours in custody, before being granted bail on 24 February 2023.  As s 159A(2) of the Penalties and Sentences Act makes plain, a period of custody of less than one day does not count as time served.  There was no error in declaring one day of pre-sentence custody.
50. [50]
    The application ought to be dismissed.
51. [51]
    FLANAGAN JA:  I agree with the Chief Justice.
52. [52]
    BUSS AJA:  I agree with the Chief Justice.