R v Jones[2023] QCA 212

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Buss AJA.
2. [2]
   BUSS AJA:  The applicant has applied for leave to appeal against sentence.
3. [3]
   On 7 October 2022, the applicant was convicted, on her pleas of guilty, of two indictable offences and three summary offences.
4. [4]
   Moynihan KC DCJ imposed a total sentence of seven years’ imprisonment.  His Honour did not set a parole eligibility date.  Consequently, the applicant must serve 50% of the total sentence before she becomes eligible for parole.  See s 184(2) of the Corrective Services Act 2006 (Qld).
5. [5]
   The first indictable offence (count 1) alleged that on 6 December 2020 the applicant unlawfully did grievous bodily harm to Patrick Thompson, contrary to s 320 of the Criminal Code (Qld) (the Code).  The second indictable offence (count 2) alleged that on 4 July 2021 the applicant dangerously operated a vehicle in Gympie Road and caused grievous bodily harm to Matthew Davies, that at the time of committing the offence the applicant was adversely affected by an intoxicating substance and that the applicant, knowing that Mr Davies had been injured, left the scene of the incident before a police officer arrived, contrary to s 328A(4)(b)(i) and (c) of the Code.
6. [6]
   The maximum penalty for each of counts 1 and 2 is 14 years’ imprisonment.
7. [7]
   The three summary offences were these:

   1. one charge of driving while over the general alcohol limit but not over the middle alcohol limit, not holder of licence or learner, probationary or provisional licence holder;
   2. one charge of driving a vehicle that was not in a safe condition; and
   3. one charge of stealing.
8. [8]
   The maximum penalty for the first summary offence is three months’ imprisonment with a minimum three months’ driver’s licence disqualification and a maximum 18 months’ driver’s licence disqualification.  The maximum penalty for the second summary offence is 20 penalty units.  The maximum sentence for the third summary offence is five years’ imprisonment.
9. [9]
   The sentencing judge sentenced the applicant to three years’ imprisonment for count 1 and four years’ imprisonment for count 2 with those sentences to be served cumulatively.  The applicant was disqualified from holding or obtaining a driver’s licence for four years as a result of her offending on count 2.  His Honour ordered that the applicant be convicted of the summary offences but not further punished.  The applicant was disqualified from holding or obtaining a driver’s licence for nine months as a result of the drink driving offence.  A total of 460 days pre-sentence custody (between 4 July 2021 and 6 October 2022) was declared as time served under the sentence.
10. [10]
    Originally, the applicant relied upon one ground of appeal.  At the hearing of the application for leave to appeal the Court granted the applicant leave to rely upon an additional ground.
11. [11]
    Ground 1 alleges, in essence, that the sentencing judge erred in finding that the deliberate use of the vehicle in count 2 was a “quintessential serious violent offence” that warranted deferring the statutory eligibility date for parole beyond the 50% mark.
12. [12]
    Ground 2 alleges, in essence, that the sentencing judge’s decision not to set a parole eligibility date resulted in a sentence that was manifestly excessive.  Counsel for the applicant expressly stated, in the context of ground 2, that it was not contended that the total effective sentence of seven years’ imprisonment was excessive.
13. [13]
    I would dismiss the application for leave to appeal against sentence.  My reasons are as follows.

The facts and circumstances of the offences

14. [14]
    The facts and circumstances of the offences, as set out in a statement of facts tendered at the sentencing hearing, were agreed by the Crown and the applicant.
15. [15]
    As to count 1, the complainant, Mr Thompson, and the applicant had known each other for about a year before the offending.
16. [16]
    On 6 December 2020, Mr Thompson, Nathan Cassidy and the applicant were at the applicant’s home unit.  Mr Cassidy was a friend of the applicant and was known to Mr Thompson.  Each of them had been consuming alcohol.  Mr Thompson said “when we are drunk we talk a lot of rubbish”.  He recalled that he must have said something upsetting to the applicant because she said “shut up or I’ll stab you”.  Mr Thompson, not thinking that the applicant’s threat was genuine, responded “if you’ve got the balls lady, do it”.
17. [17]
    The applicant then went to the kitchen and returned with a knife.  She stabbed Mr Thompson in the chest (count 1).  He fell from his seat onto the floor.
18. [18]
    After some time, Mr Cassidy called the triple-0 emergency number.  He was reluctant to tell the operator what had happened.  Mr Thompson told the operator that he had been stabbed.  Mr Cassidy said that the stabbing was an accident.
19. [19]
    Shortly afterwards, police and an ambulance arrived at the applicant’s home unit.  Mr Thompson was conveyed to hospital.
20. [20]
    Mr Thompson suffered the following injuries:

    1. a penetrating injury to the anterior chest wall centred on the fourth intercostal space;
    2. a moderate haemothorax on the right side of the chest;
    3. a mediastinal collection/haematoma adjacent to the right heart border; and
    4. a hepatic laceration through segment IVa to V and arterial bleeding from the hepatic arteries.
21. [21]
    Mr Thompson had a large active haemorrhage from the right middle hepatic artery.  His left hepatic artery had multiple sites of haemorrhage.
22. [22]
    Mr Thompson was treated in hospital and discharged on 21 December 2020.
23. [23]
    The medical opinion was that:

    1. Mr Thompson’s wounds were consistent with having been stabbed in the chest with a sharp bladed instrument;
    2. Mr Thompson required urgent medical intervention to save his life; and
    3. Mr Thompson’s injuries, if left untreated, would have been likely to have endangered his life from a respiratory compromise and/or a massive blood loss.
24. [24]
    On 6 December 2020, when police arrived at the applicant’s home unit, the applicant told the police that she was not present when Mr Thompson was stabbed.  She had been in the toilet.  When she emerged she discovered that Mr Thompson had been stabbed.  The applicant told the police that she did not see the knife, she remained on her chair drinking alcohol and she “couldn’t do anything to help”.  Mr Cassidy told police that when he arrived at the applicant’s home unit the applicant was in the bathroom.  He spoke to Mr Thompson.  After about five to 15 minutes Mr Thompson stood and said he was feeling unwell.  Mr Thompson asked Mr Cassidy to call an ambulance.  Mr Cassidy said he did not know what had happened.
25. [25]
    On 16 December 2020, police were able to obtain a statement from Mr Thompson about the facts and circumstances of count 1.
26. [26]
    On 20 December 2020, police spoke to the applicant at her home unit.  She agreed to participate in an interview with police.  Police transported her to a police station.  At the station the applicant received legal advice and declined to participate in an interview.  The applicant was arrested and released on bail.
27. [27]
    As to count 2, at about 8.30 pm on 4 July 2021 the complainant, Mr Davies, was riding his motorcycle on Gympie Road in the far right lane.  The weather was fine and dry.  At that time the applicant was driving her Toyota Camry motor vehicle in the centre lane (to the left of Mr Davies).  The applicant moved into the far right lane in front of Mr Davies without indicating.
28. [28]
    Mr Davies then moved into the lane abutting the far right lane after indicating.  He passed the applicant and, as he did, he revved his engine.  Mr Davies stopped at a red traffic light at the intersection of Gympie Road and Sadlier Street.  At that point, Gympie Road is a six lane thoroughfare with three lanes heading north and three heading south.
29. [29]
    As the applicant approached the intersection she moved her vehicle from the right hand turning lane into the adjoining lane in which Mr Davies was stationary at the red traffic light.  The applicant’s vehicle collided with the right rear side of Mr Davies’ motorcycle.  Mr Davies was thrown into the intersection.
30. [30]
    The applicant’s vehicle stopped behind Mr Davies and remained in that position for about 15 seconds.  The applicant looked at Mr Davies and then drove away.  She turned right against a red traffic light onto Sadlier Street, forcing other vehicles to stop.
31. [31]
    The incident involving the collision was captured on CCTV footage.
32. [32]
    Mr Davies was conveyed by ambulance to hospital.
33. [33]
    He suffered the following injuries:

    1. a displaced fracture of the right scapula;
    2. a fracture of the right subcapital neck of the left femur;
    3. a fractured finger; and
    4. an abrasion to the right knee.
34. [34]
    Mr Davies’ treatment in hospital included surgical management of the femur fracture.  The scapula fracture was managed conservatively with a sling and buddy strap.  Mr Davies was also treated for concussive symptoms.
35. [35]
    On 10 July 2021, Mr Davies was discharged from hospital.  He was required to ensure that his left leg was non-weight bearing for at least eight weeks.  When he was examined by an orthopaedic specialist on 11 January 2022, Mr Davies’ left leg was weight bearing and he had minimal pain.
36. [36]
    The medical opinion was that:

    1. the injury to Mr Davies’ femur was of such a nature that, if left untreated, the injury would be likely to have caused a permanent injury to health; and
    2. the femur fracture, if left untreated, would have resulted in a mal-union or non-union at the fracture site and in those circumstances the femur would not have been in the correct anatomical position.
37. [37]
    At about 8.40 pm on 4 July 2021, police went to the applicant’s home unit.  The police found the applicant’s vehicle which had obvious and significant impact damage.  Inside the vehicle were four cans of pre-mixed spirits and a broken bottle of wine.
38. [38]
    The police then spoke to the applicant at her home unit.  She said “what happened to that guy, morally its wrong, but yes I hit him with my car and I don’t know why I did it”.  The police obtained a sample of the applicant’s breath for analysis.  The breath analysis certificate revealed that, as at 9.23 pm on 4 July 2021, the applicant had a blood alcohol reading of 0.097%.
39. [39]
    At 9.40 pm on 4 July 2021, the applicant participated in an interview with police.  The applicant said, relevantly:

    1. She left the scene of the collision because the collision had been recorded on CCTV footage and she wanted to go home and take some drugs before the police arrived.  At home, she ingested two points of amphetamines.
    2. She had taken amphetamines two days before the collision.  At the time of the incident with Mr Davies, she had been drinking alcohol while driving.
    3. When the collision occurred she was travelling between 60 and 70 km/h.  She did not brake before striking Mr Davies’ motorcycle.
    4. Mr Davies had done nothing wrong and there was no reason for her actions apart from her having had a bad day.
40. [40]
    The first summary offence involved the applicant driving her vehicle with a blood alcohol level of 0.097%.  The second summary offence involved the applicant driving her vehicle in an unsatisfactory mechanical condition in that the right rear suspension strut was leaking hydraulic oil.  However, that defect would not have adversely affected the safe operation of the vehicle.  The third summary offence involved the applicant failing to pay for petrol having a value of $18.98 which she put in her vehicle at about 6.00 pm on 4 July 2021 at a Woolworths/Caltex petrol station.

The applicant’s personal circumstances and antecedents

41. [41]
    The applicant was born on 11 December 1991.  She was aged 28 at the time of the offending on count 1 and 29 at the time of the offending on count 2.  She was aged 30 when sentenced.
42. [42]
    The applicant had a traumatic background, including a childhood adversely affected by domestic violence and displacement.  When the applicant was aged 18 her 18 month old son died.  The death of her son resulted in the applicant suffering from post‑traumatic stress disorder.  She began using drugs.
43. [43]
    The applicant has a prior criminal history.  She has been convicted of numerous traffic offences.  The applicant has also been convicted of property and dishonesty offences.  In 2012 she was convicted of common assault.  In 2017 she committed a public nuisance offence.  The public nuisance arose from an argument between the applicant and a man outside a shopping centre.  She produced a knife and the man departed.  The applicant then damaged a car and put the knife down.  The man returned, picked up the knife and stabbed the applicant in the back.  The man dropped the knife and departed again.  Despite being injured, the applicant picked up the knife and followed the man through the shopping centre.  The applicant’s actions with the knife in the shopping centre constituted the public nuisance offence.  The applicant has not previously been imprisoned.

The prosecutor’s submissions to the sentencing judge

44. [44]
    The prosecutor submitted to the sentencing judge that:

    1. The applicant entered the pleas of guilty early, but not at the earliest opportunity.
    2. The applicant committed count 2 while she was on bail for count 1.
    3. A victim impact statement from Mr Davies indicated that he had been significantly affected by the offending against him.  He uses a walking cane and still suffers pain as a result of his injuries.  The offending has impacted detrimentally on his ability to interact with his children.  His motorcycle was destroyed by the collision.  He has had to rely upon others to transport him to medical appointments.
    4. The applicant did not provide any assistance to the victims of counts 1 and 2.  It was “very much good fortune” that neither Mr Thompson nor Mr Davies was more seriously injured or killed.
    5. Count 2 involved the deliberate use by the applicant of a vehicle as a weapon.  The applicant’s intoxication explained why she was not charged with intentionally causing grievous bodily harm to Mr Davies.  The Crown did not suggest that the applicant intended to cause grievous bodily harm.
    6. The head sentence for count 1 would ordinarily be in the order of four to six years’ imprisonment.  The head sentence for count 2 would ordinarily be in the order of four to five years’ imprisonment.  The individual sentences should be accumulated and the total period of imprisonment should be not less than seven years.  Eligibility for parole should be fixed at not less than one-third of that period.

Defence counsel’s submissions to the sentencing judge

45. [45]
    Defence counsel submitted to the sentencing judge that:

    1. Count 1 was committed on the day that would have been her late son’s 12^th birthday.  She was preoccupied with his death on the night she committed count 2.  The applicant requires grief counselling or other therapy in relation to her son’s death.
    2. The applicant had an extensive criminal history, but had never been imprisoned.
    3. The applicant cooperated with police in relation to count 2 and made full admissions.
    4. During her interview with police in relation to count 2, the applicant made admissions in relation to count 1.
    5. The applicant is supported by her mother, father and brothers.
    6. The applicant had a dysfunctional childhood.  Her parents separated when she was aged about 8.  She was verbally and physically abused by another man with whom her mother had a relationship.  Ultimately, the applicant was removed from her mother’s care and lived with her grandmother.  Later, the applicant’s father was responsible for her welfare.  She lived with him until she was aged 15.  The applicant gave birth to her son when she was 16.  The applicant has not recovered from the devastating loss of her son.
    7. The applicant now has another son who, at the time of sentencing, was aged 8.  Her relationship with that boy’s father began in 2012 and ended in 2014.  They have remained in contact.  The boy’s father has facilitated contact between the applicant and the boy while she has been in custody.
    8. The applicant expects that when she ceases to be a remand prisoner she will be moved to the correctional facility at Gatton.  The more remote location of that facility means that the applicant will no longer have personal visits from her son and any visits from him will be virtual.  It has been difficult for the applicant’s son to see her in prison.
    9. The applicant has had three periods of isolation as a remand prisoner because of COVID-19.
    10. The applicant was at “breaking point” and “rock bottom” when she committed the offences.  Her heavy consumption of alcohol in the context of her traumatic background provides some explanation for the offending.  She is extremely remorseful for her criminal conduct.
    11. Prior to her detention in custody, the applicant was in receipt of a disability support pension as a result of her mental health.  She last had employment in about 2012 when she worked in the hospitality industry.  The applicant hopes, upon release from custody, to return to work.  She has been productive as a remand prisoner.  She works in the prison canteen and is in a position of trust within the prison.
    12. The applicant has previously been admitted to mental health facilities for treatment of drug induced psychosis.  Her mental health has improved in prison because she is no longer ingesting intoxicating substances.  She continues to take prescribed medication for depression.
    13. A total sentence of seven years’ imprisonment would properly reflect the applicant’s criminality as a whole and would be within a sound exercise of the sentencing discretion.  The eligibility date for release on parole should be fixed at 3 July 2023.  At that date the applicant will have served two years in custody.
46. [46]
    After defence counsel completed his submissions there was some debate between the sentencing judge and defence counsel.  Defence counsel accepted that the applicant used her vehicle deliberately as a weapon against Mr Davies.  His Honour put to defence counsel that those circumstances “may warrant deferring the statutory eligibility date [for parole] in relation to that offence alone … beyond the 50 per cent mark”.  Defence counsel did not accept that the statutory eligibility date should be deferred beyond the 50% mark.  He emphasised that the level of danger the applicant poses to the community is tied to her past trauma and that her past trauma must be taken into account when determining “how that act of purposefully driving into Mr Davies should be interpreted and dealt with in the sentencing process”.  Defence counsel accepted, however, that the applicant’s intoxication, when she committed count 2, was a matter of aggravation.

The relevant statutory provisions

47. [47]
    The relevant provisions of the Penalties and Sentences Act 1992 (Qld) are these:

    1. In s 4, “serious harm” is defined to mean “any detrimental effect of a serious nature on a person’s emotional, physical or psychological wellbeing, whether temporary or permanent”.
    2. In s 4, “serious violent offence” is defined to mean “a serious violent offence of which an offender is convicted under section 161A”.
    3. By s 160C(1), s 160C applies if s 160D does not apply and the offender’s period of imprisonment is more than three years.
    4. By s 160C(2), if the offender had a current parole eligibility date, the court must fix the date the offender is eligible for parole.
    5. By s 160C(3), if the offender had a current parole release date, the court may fix the date the offender is eligible for parole.
    6. By s 160C(5), if neither sub-s (2) nor (3) applies, the court may fix the date the offender is eligible for parole.
    7. By s 160D(1), relevantly, s 160D applies if the offender’s period of imprisonment includes a term of imprisonment for a serious violent offence.
    8. By s 160D(2), if the offender had a current parole eligibility date or current parole release date, the court must fix the date the offender is eligible for parole.
    9. By s 160D(3), if sub-s (2) does not apply, the court may fix the date the offender is eligible for parole.
    10. By s 161A(a), relevantly, an offender is convicted of a serious violent offence if the offender is convicted on indictment of an offence against a provision mentioned in schedule 1 and sentenced to ten or more years imprisonment for the offence.
    11. The provisions mentioned in schedule 1 include an offence against s 320 of the Code (grievous bodily harm) and an offence against s 328A of the Code (dangerous operation of a vehicle).
    12. By s 161A(b), an offender is convicted of a serious violent offence if the offender is convicted on indictment and declared to be convicted of a serious violent offence under s 161B(3) or (4).
    13. By s 161B(3), relevantly, if an offender is convicted on indictment of an offence against a provision mentioned in schedule 1 and sentenced to five or more, but less than ten years imprisonment for the offence, the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.
    14. By s 161B(4), relevantly, if an offender is convicted on indictment of an offence that resulted in serious harm to another person and the offender is sentenced to a term of imprisonment for the offence, the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.
48. [48]
    The relevant provisions of the Corrective Services Act are these:

    1. Section 182(1) read with s 182(2) provides that the parole eligibility date of a prisoner who is serving a term of imprisonment for a serious violent offence is the day after the day on which the prisoner has served the lesser of 80% of the prisoner's term of imprisonment for the serious violent offence or 15 years.
    2. Section 184(1)(a) provides, relevantly, that s 184 applies to a prisoner who has been sentenced for an offence after the commencement of s 184 to a period of imprisonment of more than three years.
    3. By s 184(2), the prisoner’s parole eligibility date is 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.
    4. However, by s 184(3)(a), if an earlier or later parole eligibility date is fixed for the prisoner under Pt 9, Div 3 of the Penalties and Sentences Act (which comprises s 160 to s 160H), the prisoner’s parole eligibility date is the date fixed under that division.

The general approach to the discretion conferred by s 161B(4) of the Penalties and Sentences Act

49. [49]
    In R v McDougall & Collas [2006] QCA 365; [2007] 2 Qd R 87, this Court (Jerrard, Keane and Holmes JJA) made these comments about the exercise of the discretion conferred by s 161B(4) of the Penalties and Sentences Act [19] ‑ [21]:

It is where the making of a declaration is discretionary that a difference in views has arisen about whether declarations are available as a sentencing tool, when the circumstances are not beyond the norm for that offence.  The following observations may assist sentencing courts:

• the discretionary [power granted by s 161B(4) is] to be exercised judicially and so with regard to the consequences of making a declaration;
• a critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80 per cent of the head sentence before being able to apply for parole.  By definition, some of the offences in the Schedule to the Act will not necessarily – but may – involve violence as a feature, such as trafficking in dangerous drugs or maintaining a sexual relationship with a child;
• the discrete discretion granted by [s 161B(4)] requires the existence of factors which warrant its exercise, but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration, or not doing so;
• the considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing;
• the law strongly favours transparency and accessible reasoning, and accordingly sentencing courts should give reasons for making a declaration, and only after giving the defendant an opportunity to be heard on the point;
• for the reasons to show that the declaration is fully warranted in the circumstances it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them;
• without that last feature, it may be difficult for the reasons to show that the declaration was warranted;
• where a discretionary declaration is made, the critical question will be whether the sentence with that declaration is manifestly excessive in the circumstances; accordingly the just sentence which is the result of a balancing exercise may well require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences;
• where the circumstances of the offence do not take it out of the “norm” for that type, and where the sentencing judge does not identify matters otherwise justifying the exercise of the discretion, it is likely that the overall result will be a sentence which is manifestly excessive, and in which the sentencing discretion has miscarried; probably because of an incorrect exercise of the declaration discretion.

The considerations which may lead a sentencing judge to conclude that there is good reason to make a recommendation apt to bring forward the offender's eligibility for parole will usually be concerned with the offender's personal circumstances which provide an encouraging view of the offender's prospects of rehabilitation, as well as due recognition of the offender's co-operation with the administration of justice.

The considerations which may lead a sentencing judge to conclude that there is good reason to postpone the date of eligibility for parole will usually be concerned with circumstances which aggravate the offence in a way which suggests that the protection of the public or adequate punishment requires a longer period in actual custody before eligibility for parole than would otherwise be required by the Act having regard to the term of imprisonment imposed.  In that way, the exercise of the discretion will usually reflect an appreciation by the sentencing judge that the offence is a more than usually serious, or violent, example of the offence in question and, so, outside "the norm" for that type of offence. (emphasis added) (footnotes omitted)

50. [50]
    In R v Assurson [2007] QCA 273; (2007) 174 A Crim R 78 [22], Williams JA (Keane JA and Mullins J relevantly agreeing) noted that in McDougall & Collas this Court pointed out that a sentencing court could, “for good reason”, exercise the power conferred by s 160C(5) to postpone eligibility for parole beyond the half‑way mark.  The “good reason” for postponing the parole eligibility date in Assurson, in the context of an offence of trafficking in methylamphetamine and other illicit drugs, was established by the extent of the trafficking, the fact that more than one illicit drug was involved, the fact that the offender had been willing to resort to violence to recover drug debts and the fact that the offender had reoffended whilst on bail.
51. [51]
    In R v Free; Ex parte Attorney‑General (Qld) [2020] QCA 58; (2020) 4 QR 80, the Attorney‑General appealed against a sentence imposed on the respondent for three counts.  The Attorney‑General contended, relevantly, that the sentencing judge erred in failing to declare the offence in count 1 a serious violent offence.  This Court (Philippides JA and Bowskill and Callaghan JJ) analysed McDougall & Collas and concluded that the Attorney‑General's contention should be accepted.  Their Honours said [49]:

The exercise of the sentencing discretion in the present case was affected by error, in particular in relation to the exercise of the discretion whether to make a serious violent offence declaration, by focussing on a perceived need to find factors which take the case outside the norm for the type of offence; rather than considering more broadly whether there are circumstances of the case which aggravate the offence in a way which suggests the protection of the public or adequate punishment required a longer period in actual custody before eligibility for parole than would otherwise be required.

The sentencing judge’s sentencing remarks

52. [52]
    In the present case, the sentencing judge recounted in his sentencing remarks the facts and circumstances of the offending, the applicant’s personal circumstances and antecedents and the submissions of the prosecutor and defence counsel in relation to the sentencing outcome.
53. [53]
    His Honour also made the following findings and observations:

    1. As to count 2, the applicant deliberately used her vehicle as a weapon.  It was a “quintessential serious violent offence”.  His Honour noted the very significant and ongoing impact of the offending upon Mr Davies (the victim of count 2).  His Honour referred to a victim impact statement from Mr Davies in which Mr Davies set out “the substantial and devasting effect the offending had and continues to have for him and those close to him”.  His Honour said that count 2 could, in the circumstances, of itself “warrant deferring the statutory eligibility date beyond the 50 per cent mark”.
    2. His Honour said that he would “reflect the matters of mitigation by reducing the otherwise appropriate head sentence in each case and, in relation [to] count 2, not deferring the parole eligibility for that offence beyond the statutory eligibility date of after [the applicant had] served 50 per cent”.  His Honour referred to Assurson.
    3. His Honour said that he would also moderate each of the head sentences he would otherwise have imposed “to ensure that the aggregate of the consecutive sentences is not crushing and [to] ensure [that the aggregate] is a just and appropriate sentence in all the circumstances”.
    4. It was appropriate to impose cumulative terms in circumstances where “the offending is different in nature, committed at different times and the offence in count 2 was committed whilst [the applicant was] on bail for count 1”.

The submissions of counsel for the applicant

54. [54]
    As to ground 1, counsel for the applicant contended that there must be “good reason” to postpone the parole eligibility date beyond the statutory half-way mark.  It was submitted that, in the present case, the sentencing judge “expressed that the reason for such a course … was due to [the applicant] deliberately using her vehicle as a weapon”.  Counsel argued that, in arriving at that conclusion, “his Honour failed to consider the agreed context surrounding the use of the vehicle, namely that the applicant was intoxicated at the time, and the impact this had on her intention”.  It was submitted that at the sentencing hearing before his Honour the prosecutor and defence counsel were agreed that the applicant’s intoxication “provided relevant context in relation to her intention (or lack thereof) for the use of the vehicle”.  Despite the agreed position, his Honour’s sentencing remarks reveal “no consideration of the impact of the applicant’s intoxication on [his Honour’s] determination [that the applicant] had deliberately used the vehicle as a weapon”.
55. [55]
    Counsel emphasised that the applicant was not charged with the more serious offence of causing grievous bodily harm with intent.  Nevertheless, his Honour found that count 2 was a “quintessential serious violent offence” and, so it was submitted, “determined [that] the use of the vehicle justified deferral of the parole eligibility date beyond the half-way mark”.  Although counsel accepted that the head sentence was then moderated, his Honour’s starting point “appears to have been influenced by his view [that] this was a serious violent offence”.  According to counsel, if that was the case, then his Honour was in error.
56. [56]
    Counsel also complained that the sentencing judge did not explain why, beyond the deliberate use of the vehicle as a weapon, count 2 was an offence that necessitated a parole eligibility date beyond the half-way mark.  It was submitted that there was no express consideration of whether the factors enumerated in McDougall & Collas [21] were satisfied.  According to counsel, having regard to the applicant’s personal circumstances and antecedents, the protection of the public or adequate punishment did not require that the applicant serve a longer period in actual custody.  It was submitted that his Honour’s failure to give express consideration to this issue constituted a material error.
57. [57]
    As to ground 2, counsel for the applicant contended that the sentencing judge’s decision to decline to set a parole eligibility date resulted in an aggregate sentence that is manifestly excessive.  Counsel argued that her contention was supported by relevant comparable cases, the applicant’s early pleas of guilty and the absence of any good reason for deferring the parole eligibility date in relation to count 1.  According to counsel, the failure to set a parole eligibility date, following the imposition of cumulative terms of imprisonment for count 1 and count 2, resulted in an aggregate sentence that was manifestly excessive in relation to the actual time the applicant is required to serve in custody.
58. [58]
    Counsel referred to a number of prior cases including R v Dancey [2013] QCA 135, R v Presgrave [2014] QCA 105, R v Browne [2016] QCA 111, R v Bussey [2003] QCA 197 and R v Barker [2013] QCA 340.  It was submitted that those cases support the contention that the aggregate sentence imposed in the present case is manifestly excessive “due to the requirement [that] the applicant serve half the term of imprisonment before becoming eligible for parole”.

The submissions of counsel for the Crown

59. [59]
    Counsel for the Crown submitted that the sentencing judge did not err as asserted by the applicant.  In particular, the individual sentences for count 1 and count 2, the aggregate sentence and the parole eligibility date were within the sound exercise of the sentencing discretion.

The merits of ground 1

60. [60]
    Section 161A(a) of the Penalties and Sentences Act provides, relevantly, that an offender is convicted of a serious violent offence if the offender is convicted on indictment of an offence against a provision mentioned in schedule 1 and sentenced to ten or more years imprisonment for the offence.  The provisions mentioned in schedule 1 include an offence against s 328A of the Code.  In the present case, the offence charged in count 2 was an offence against s 328A.  However, s 161A(a) did not apply because the applicant was not sentenced to ten or more years imprisonment for count 2.
61. [61]
    Section 161A(b) of the Penalties and Sentences Act provides that an offender is convicted of a serious violent offence if the offender is convicted on indictment and declared to be convicted of a serious violent offence under s 161B(3) or (4).  In the present case, s 161B(3) did not apply to count 2 because the applicant was not sentenced to five or more, but less than ten years imprisonment for count 2.  However, by s 161B(4), relevantly, if an offender is convicted on indictment of an offence that resulted in “serious harm” to another person and the offender is sentenced to a term of imprisonment for the offence, the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.  In the present case, the applicant was convicted on indictment of an offence (relevantly, count 2) that resulted in Mr Davies being injured and the applicant was sentenced to a term of imprisonment for the offence.  Mr Davies suffered a fracture of the right shoulder, a fracture of the left hip, a fractured finger and abrasions.  The information before the sentencing judge included a victim impact statement from Mr Davies.  His Honour noted that in the statement Mr Davies had set out “the substantial and devasting effect the offending had and continues to have for him and those close to him”.  In my opinion, there is no doubt that the injuries suffered by Mr Davies constituted “serious harm” to Mr Davies in that the injuries had a detrimental effect of a serious nature on his emotional and physical wellbeing.
62. [62]
    Although the injuries suffered by Mr Davies constituted “serious harm” to Mr Davies, and his Honour said that the deliberate use of the vehicle in count 2 was a “quintessential serious violent offence” that warranted deferring the statutory eligibility date for parole beyond the 50% mark, his Honour did not make a declaration in respect of count 2 pursuant to s 161B(4) of the Penalties and Sentences Act.  His Honour’s approach was, instead, to take into account the applicant's deliberate use of her vehicle as a weapon and the significant and ongoing impact of the offending upon Mr Davies by declining to fix a parole eligibility date pursuant to s 160C(5) of the Penalties and Sentences Act, so that s 184(2) of the Corrective Services Act applied and the applicant’s parole eligibility date would be the day after the day on which she has served half of the aggregate term of imprisonment to which she was sentenced.
63. [63]
    An assessment of the error asserted in ground 1, namely that the sentencing judge erred in finding that the deliberate use of the vehicle in count 2 was a “quintessential serious violent offence” that warranted deferring the statutory eligibility date for parole beyond the 50% mark, must be made having regard to all the facts and circumstances of the offending on count 2 and the applicant's personal circumstances and antecedents.
64. [64]
    The seriousness of the applicant’s offending on count 2 was underscored by a number of features.  Her use of her vehicle as a weapon was aggravating.  See R v Henderson; Ex parte Attorney‑General (Qld) [2013] QCA 63 [54] (Margaret Wilson J; Muir JA and Douglas J agreeing).  The applicant inflicted severe injuries on Mr Davies.  She did not remain at the scene of the collision until police arrived and she failed to take any steps to secure medical treatment for him.  The applicant was driving under the influence of alcohol when she struck Mr Davies with her vehicle.  She was on bail for the commission of count 1 when she committed count 2.  The applicant had a reasonably extensive (four page) criminal history and consequently was not of prior good character.
65. [65]
    The sentencing judge's finding that the applicant deliberately used her vehicle as a weapon related to her deliberate use of her vehicle to collide with Mr Davies' motorcycle.  Defence counsel accepted that the applicant used her vehicle deliberately as a weapon.  His Honour did not make a finding that the applicant deliberately used her vehicle for the purpose of intentionally inflicting grievous bodily harm on Mr Davies.  It is plain on a fair reading of the transcript of the sentencing hearing that his Honour was well aware that count 2 did not allege that the applicant intended to cause grievous bodily harm.  The prosecutor did not make a suggestion to that effect.  The applicant's intoxication was of itself an aggravating factor.  The applicant's post‑traumatic stress disorder resulting from the death of her son was mitigating, but there was no expert evidence to the effect that this disorder had caused her intoxication.  The applicant's intoxication did not preclude his Honour's finding that she deliberately used her vehicle as a weapon.
66. [66]
    His Honour was entitled, having taken into account all of the facts and circumstances of the offending on count 2 and the applicant's personal circumstances and antecedents, to conclude that the applicant's criminal conduct on count 2 was an especially serious instance of the offence in question by virtue of her deliberate use of her vehicle as a weapon.  It was open to his Honour to conclude that, in all the circumstances, the public required protection from a person who was willing to drive a motor vehicle in the manner in which the applicant drove her vehicle.  It was also open to his Honour to conclude that, in all the circumstances, adequate punishment of the applicant required a longer period in actual custody than would otherwise be required before becoming eligible for parole.
67. [67]
    I am satisfied that the sentencing judge was entitled to adopt a starting point that would have required the applicant to serve more than 50% of her sentence before becoming eligible for parole.
68. [68]
    His Honour's approach was consistent with the decisions of this Court in McDougall & Collas, Assurson and Free.  His Honour was entitled to make the impugned finding.
69. [69]
    Ground 1 fails.

The merits of ground 2

70. [70]
    As to ground 2, it is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum penalty for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender’s criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the offender’s personal circumstances and antecedents.
71. [71]
    Except where a mandatory sentence is prescribed, a sentencing judge exercises a discretionary judgment which is subject to applicable statutory provisions and judge‑made law.  This Court can intervene if the applicant demonstrates either an express or an implied material error.  Express error includes acting on a wrong principle (for example, mistaking the law or the facts or taking into account an irrelevant consideration).  Implied error arises where the sentencing outcome is so unreasonable or unjust that this Court must conclude that a substantial wrong has occurred.  The discretion conferred on sentencing judges is, of course, of fundamental importance and this Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion differently.
72. [72]
    Section 13 of the Penalties and Sentences Act requires that a plea of guilty be taken into account in sentencing an offender, but the Act does not prescribe how the plea must be taken into account.  The sentencing court's discretion to fix a parole eligibility date is unfettered.  The significance of a plea of guilty in the context of the exercise of that discretion will vary from case to case.  See R v Randall [2019] QCA 25 [43] (Sofronoff P, Morrison JA and Burns J).  There is no inflexible rule that a plea of guilty must be recognised by fixing a non‑parole period of one‑third of the head sentence.  See R v Lilley [2021] QCA 52 [49] (Rafter AJ; Sofronoff P and Boddice J agreeing).  Recently, in R v Granz‑Glenn [2023] QCA 157 [12] Bond JA (Flanagan JA and Bradley J agreeing) remarked:

This Court has acknowledged that the extent of the reduction of a sentence to reflect an early plea of guilty is frequently a reduction of the non-parole period to one third of the head sentence.  But it has also made clear that it is a practice not a hard and fast rule.  In each case a discretion must be exercised and “[t]he factors relevant to setting a non-parole period include the specific circumstances of the offender including his antecedents, character, and any prior criminal history.” (footnotes omitted)

73. [73]
    In the present case, the sentencing judge recounted in his sentencing remarks the submissions of the prosecutor and defence counsel in relation to the sentencing outcome.  The prosecutor submitted that the head sentence for count 1 would ordinarily be in the order of four to six years’ imprisonment; the head sentence for count 2 would ordinarily be in the order of four to five years’ imprisonment; the individual sentences should be accumulated and the total period of imprisonment should be not less than seven years; and eligibility for parole should be fixed at not less than one‑third of that period.  Defence counsel submitted that a total sentence of seven years’ imprisonment would properly reflect the applicant’s criminality as a whole and that the eligibility date for release on parole should be fixed at 3 July 2023, when the applicant will have served two years in custody.
74. [74]
    His Honour took the mitigating factors into account in deciding upon the length of the terms of imprisonment for count 1 and count 2 and the length of the total sentence.  His Honour also took the mitigating factors into account by not deferring the parole eligibility date for count 2 beyond the 50% mark that would apply under s 184(2) of the Corrective Services Act.
75. [75]
    In the result, the sentencing judge sentenced the applicant to three years’ imprisonment for count 1; four years’ imprisonment for count 2; and an aggregate sentence of seven years’ imprisonment (by ordering the individual sentences to be served cumulatively).  His Honour did not set a parole eligibility date so that the 50% non-parole period imposed by s 184(2) applied.
76. [76]
    Both count 1 and count 2 involved serious offending of its kind.  In all the circumstances, the individual sentences for count 1 and count 2 were at the lower end of the available range and the total sentence was reasonably lenient.
77. [77]
    I am not persuaded that the manner in which his Honour determined the components of the sentence he imposed on the applicant was wrong as a matter of principle or produced a sentencing outcome that is unreasonable or plainly unjust.  The cases relied upon by counsel for the applicant do not establish material error.  The most relevant of those cases are Bussey and Barker.  It is unnecessary to reproduce the facts and circumstances of Bussey and Barker or the sentencing outcomes.  There are some comparable features between those cases and the present case, but there are also distinguishing features.  Although pleas of guilty (and other mitigating factors) must be taken into account in sentencing an offender, the Penalties and Sentences Act does not prescribe how they must be taken into account.  In particular, the discretion to fix a parole eligibility date is unfettered.  The significance of pleas of guilty (and other mitigating factors) in the exercise of the sentencing discretion (including the exercise of the discretion in relation to the parole eligibility date) will vary from case to case.  His Honour was entitled to structure the sentence as he did and the sentencing outcome, considered as a whole, appropriately reflected all relevant sentencing considerations, including the aggravating and the mitigating factors.  His Honour's decision to decline to set a parole eligibility date did not result in a total sentence that is manifestly excessive.
78. [78]
    Ground 2 fails.

Conclusion

79. [79]
    In my opinion, the application for leave to appeal against sentence should be dismissed.
80. [80]
    KELLY J:  I agree with Buss AJA.