R v Major[2025] QCA 5

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the orders proposed by Bradley J and with his reasons.
2. [2]
   BRADLEY J:  The applicant, Mr Major, was among more than 100 prisoners who rioted at the Capricornia Correctional Centre (Capricornia CC) on 21 and early 22 October 2021.  He entered an early plea of guilty to the offence of riot with circumstances of aggravation (the riot offence)^[1] in the District Court at Rockhampton.  After two days remanded in custody, Mr Major was sentenced to imprisonment for four years for the riot offence.^[2]  The Court ordered that he serve the whole of a six-month suspended sentence for an earlier offence.^[3]  The Court directed that Mr Major serve this six-month term of imprisonment and the four-year term of imprisonment imposed for the riot offence cumulatively.^[4]
3. [3]
   The Court declared three days of pre-sentence custody^[5] as time already served on the sentence.  The Court took into account another 149 days pre-sentence custody,^[6] but did not declare it as time served.  The Court fixed 12 April 2025 as the date Mr Major would be eligible for parole, being the date by which he will have served about 16 months in custody.
4. [4]
   Mr Major seeks leave to appeal against the sentence.  He advances three grounds of appeal.  Two grounds allege the learned sentencing judge made specific errors: an alleged lack of reasons for making the four-year sentence cumulative on the activated six-month sentence; and the treatment of the 149 days pre-sentence custody.  The third ground is that the sentence is manifestly excessive in the circumstances.

The riot offence

5. [5]
   On 21 October 2021, when he committed the riot offence, Mr Major was 26 years of age.  He was a prisoner in the Capricornia CC, serving a 12-month sentence for attempting to enter a dwelling with intent at night (the attempt offence).
6. [6]
   This sentence had been imposed by the Magistrates Court at Woorabinda on 14 December 2020.  Woorabinda is Mr Major’s hometown.  It is the main town in the Aboriginal Shire of Woorabinda, in the Duaringa District.  It is about 170 km south-west of Rockhampton.  The Magistrates Court had ordered him to be released on parole for the attempt offence on 2 March 2021.  He was duly released.  By then he had served about 79 days in custody.
7. [7]
   On 12 April 2021, while Mr Major was on parole for the attempt offence, the Magistrates Court at Woorabinda had imposed a wholly suspended sentence of six months’ imprisonment, with an operational period of 18 months (the suspended sentence), for an offence of assault occasioning bodily harm (the assault offence).  The consequences of the suspended sentence included that Mr Major was not taken to have breached his court-ordered parole for the attempt offence,^[7] and so could continue to serve the remaining seven months of that sentence in the community.
8. [8]
   In about May 2021, five weeks later, the Parole Board suspended Mr Major’s court-ordered parole for the attempt offence.  No explanation for this decision was placed before the sentencing judge or this Court.  Mr Major was received into police custody on 14 June 2021,^[8] and into corrective services custody at Capricornia CC on 21 June 2021.  He had been there about four months by 21 October 2021, the date of the riot offence.^[9]
9. [9]
   At the sentencing hearing, the Crown tendered a schedule of facts.  As well as Mr Major’s conduct, the schedule included many events that occurred in the lead up to and during the riot involving unidentified prisoners and some identified prisoners other than Mr Major.  The following summary is drawn from the schedule and some other matters placed before the sentencing judge.
10. [10]
    The riot started at about 8.30 am on Thursday 21 October 2021 and continued for about 18 hours, ending at about 2.30 am on Friday 22 October 2021.  More than 100 prisoners were involved.  The total damage caused by the whole of the riot was “estimated to cost over $1.2 million.”
11. [11]
    Three days before the riot, Mr Major had warned a custodial correctional officer (CCO) that there would be a serious problem if a scheduled visit by Elders from Woorabinda were to be prevented by a “lock down” scheduled by Capricornia CC staff “to facilitate an all-staff meeting.”  The prison management took no steps to alter the lock down plans.
12. [12]
    On 21 October 2021, at about 8.30 am, some CCOs sought out and spoke with Mr Major and another prisoner (whose mother had been denied entry to visit because of the scheduled lock down).  They were in secure unit four (S 4) of the prison.  The CCOs saw Mr Major and the other prisoner as leaders within S 4.
13. [13]
    The other prisoner was:

“particularly aggrieved because his mother had told him Corrective Services had communicated to her that she was at the front of the prison and was prohibited from visiting the facility.”

14. [14]
    The other prisoner told the CCOs, “youse can f*** off, we’re not getting locked down today.  …  This is bulls**t that I can’t see my mother”.  According to the statement of facts, “This agitated other prisoners including [Mr] Major who stated, ‘this means f***ing war’.”
15. [15]
    Despite these exchanges, the “conversation was calm”.^[10]  Mr Major and the other prisoner asked to speak to the general manager, saying words to the effect, “You guys don’t have to worry, we’re not going to start anything or throw anything at you.”
16. [16]
    As this conversation was occurring, other prisoners began to become agitated, demanding that the CCOs leave and threatening them if they did not do so.  Another prisoner threw a bin in the direction of one of the CCOs.  The CCOs retreated and, at 8.47 am, put the prison into “Code Yellow”, signifying there was a threat to officer safety.  Prisoners (not including Mr Major) set a wheelie bin on fire and “armed” themselves with broomsticks.  At 9.02 am, the CCOs put the prison into “Code Black”, signifying a centre-wide lock down.
17. [17]
    Mr Major’s involvement in the riot was detailed as follows:

    1. At about 9.30 am, Mr Major “was recognised by a CCO damaging exhaust fans and trying to remove [them] from the roof of E Block.”
    2. Before 10.50 am, with two other prisoners, Mr Major was recognised by another CCO breaking into a landscaping shed by kicking, shoulder barging and pulling at a roller door.
    3. At 11.07 am, Mr Major spoke with two other prisoners.  One of the other prisoners used a pickaxe and the second used a shovel to smash the door of an officer’s station in the residential compound.
    4. At about 12.15 pm, Mr Major returned to the officer’s station.  He opened a wheelie bin and tipped something into it.  He then “tipped a flammable substance” into another bin “causing it to come alight” and wheeled it inside the officer’s station.  He then opened the first bin “letting a lot of smoke out.”
    5. At about 12.30 pm, Mr Major walked around the residential compound carrying two mops and “sniffing from a container.”
    6. At 12.49 pm, he was “sniffing from a container near another residential block.”
    7. Sometime later, he was on the roof in a group of prisoners.  He was “throwing full cans of soft drink” at CCOs.
    8. At 2.16 pm, Mr Major walked near a small fire and “poured a flammable substance onto it causing the fire to momentarily expand” before walking away.
    9. At about 2.30 pm, he was one of about ten prisoners who “attempted to gain access to the Protection and Detention units by smashing the roof and windows in addition to tipping petrol inside.”  Mr Major was using a hammer.
    10. From at least 3.38 pm, he was on the roof of the activities building “with all other prisoners that were still participating in the riot.”  He remained on the roof until just before 9 pm.
18. [18]
    At about 9.00 pm, officers attempted to assist Mr Major with coming down from the roof.  He collapsed when he reached the officers.  He “suffered a seizure and stopped breathing.”  He was taken to hospital.  He “told paramedics that he had injected himself with an unknown substance around midday.”
19. [19]
    Although the riot continued until about 2.30 am on 22 October 2021, it was not alleged that Mr Major played any further role.
20. [20]
    There were two photographs in the schedule of facts.  One shows the roof of a large building in daylight, with the words “BLACK LIFE MATTER”.^[11]  The other shows a wire fence and a building with a fire in the night.  It was not alleged that Mr Major painted the sign on the roof or lit the fire in the photograph.

Events after the riot offence

21. [21]
    On 31 December 2021, Mr Major completed his sentence for the attempt offence.  He was released.  He had served about 280 days (just over nine months) of the 12-month sentence in custody.^[12]
22. [22]
    On 5 May 2022, Mr Major was charged with the riot offence.  That was six and a half months after the offending.  Mr Major declined an interview and was given a notice to appear.  By then, he was back in custody.
23. [23]
    He had been arrested on 22 January 2022 and charged with assaulting a police officer and committing a public nuisance (the January 2022 offences).  He would be on remand for 171 days (or about six months) for the January 2022 offences before 12 July 2022, when the Magistrates Court at Rockhampton would sentence him to “time served”.  On that occasion, the Court was satisfied the January 2022 offences breached the terms of the suspended sentence.  The Magistrates Court was satisfied it would be unjust to activate the suspended sentence, and extended the operational period from 18 months to 22 months.
24. [24]
    So, on 12 July 2022, Mr Major was released from custody.
25. [25]
    On 18 October 2022, he was arrested for two further offences: common assault on 10 September 2022; and obstructing a police officer on 17 October 2022 (together the September-October 2022 offences).  On 12 February 2023, when the extended operational period of the suspended sentence expired, he was still on remand for the September-October 2022 offences.
26. [26]
    He would be on remand for 148 days (about five months) until 15 March 2023, when the Magistrates Court at Rockhampton sentenced him to “time served” for the September-October 2022 offences.  Mr Major remained in custody for one day (15 March 2023) before being released.^[13]
27. [27]
    The riot offence proceeded by a registry committal on 16 March 2023.  After that time, Mr Major appears to have been at liberty on his own undertaking, without conditions, until the sentencing hearing for the riot offence.^[14]  The defence counsel told the sentencing judge this eight-month period out of custody had been “one of his longest in his adult life.”
28. [28]
    On 28 August 2023, the Crown presented an indictment for the riot offence in the District Court at Brisbane.  This was more than 22 months after the riot.  The Court ordered that the indictment be transferred to the District Court at Rockhampton.
29. [29]
    The indictment was mentioned before the sentencing judge in the Rockhampton District Court on 18 September, 23 October, and 13 and 14 November 2023.  On each occasion, the Court enlarged Mr Major’s bail.  The matter was originally listed for sentence on 17 November 2023, but on the last mention the listing was changed to 13 December 2023.

The sentencing hearing

30. [30]
    On 13 December 2023, Mr Major was arraigned and pleaded guilty to the riot offence.  It was the first time he had been before the District Court to be sentenced.  He was 26 when he committed the riot offence and was 28 at the sentencing hearing.  It was an early plea of guilty.  The lengthy delay between the offending and the sentencing hearing could not be attributed to Mr Major.
31. [31]
    The sentencing judge received written submissions and some documentary evidence, and heard the parties’ oral submissions on the sentence.

The Crown submissions at the sentencing hearing

32. [32]
    The Crown submitted a sentence of four to five years imprisonment was a “starting point”.  As Mr Major had already served the whole of the 12-month sentence that placed him in the Capricornia CC at the time of the riot, the Crown submitted “there would be no need to reduce the head sentence” to take account of it being served cumulatively with that now expired sentence.  The Crown urged parole eligibility after Mr Major had served one third of the sentence, to reflect his early plea of guilty.  Finally, the Crown proposed that the whole of the suspended sentence be activated and that it be served concurrently with the head sentence for the riot offence.

33. [33]
    The sentencing judge was told 64 of the prisoners involved in the riot had been charged, of whom 20 had been sentenced.  The Crown Prosecutor annexed to his written outline of submissions a table outlining the sentences imposed on 20 other participants in the riot.  The table recorded:

    1. One prisoner, Mr Lynch, had been sentenced to nine months’ imprisonment (to be served cumulatively on another sentence), with parole eligibility after about seven months;
    2. Nine prisoners had been sentenced to 12 months’ imprisonment:
       1. Mr Saunders’ sentence was wholly suspended with an operational period of 12 months;
       2. Mr Scott was given a parole release date after serving three further days in custody from the date of sentence;
       3. six, Mr McLennan, Mr Bickford, Mr Kepa, Mr Geehoy, Mr Barrett, and Mr Palframan had been given immediate parole eligibility;^[15]
       4. Mr Cavanagh was ordered to serve his sentence concurrently with a nine-month suspended sentence that was activated in full.  His parole eligibility date, which had been fixed in respect of another offence (and which was about two months from the riot offence sentence date) was not altered;
    3. five prisoners had been sentenced to 15 months’ imprisonment:
       1. Mr Pel’s sentence was wholly suspended with an operational period of two years;
       2. Mr Hargrave’s sentence was wholly suspended with an operational period of two and a half years;
       3. Mr Cain and Mr Sauer were immediately released on parole; and
       4. Mr Delta was given parole eligibility after serving another 10 days;
    4. Mr Morton had been sentenced to 18 months’ imprisonment, with immediate parole eligibility;
    5. Mr Smith had been sentenced to 21 months’ imprisonment, to be served concurrently with another sentence, and with immediate parole eligibility;
    6. Mr Nunan had been sentenced to two years’ imprisonment, suspended forthwith with an operational period of two years;
    7. Mr Freeman had been sentenced to the 778 days (two years and 48 days) he had already served as pre-sentence custody; and
    8. Mr Armstrong had been sentenced to three years’ imprisonment to be served concurrently with sentences of imprisonment for terms of two years and six months for violent offences on another indictment.  315 days (about 10 months) of pre-sentence custody was declared as time already served.  He was given parole release date after serving about another seven weeks.

34. [34]
    In the written submissions, the Crown informed the sentencing judge that Mr Major was the first “leader or instigator” to be dealt with by the Court.  In oral submissions Mr Spinaze for the Crown told the sentencing judge that Mr Major was “one of the main instigators at the commencement of this riot.”  Ms Spinaze continued:

“He is also considered one of two leaders by the correctional officers who had responsibility for the unit in S 4 at the time, and those officers were talking to Mr Major and one other person in relation to diffusing the situation.”

35. [35]
    The Crown identified Mr Morton as the “closest” to Mr Major “in activities.”  The Crown tendered the transcript of the sentencing remarks for Mr Morton and two other prisoners convicted of riot.
36. [36]
    The Crown referred the sentencing judge to the decisions in R v SDN [2021] QCA 158, R v Kiripatea [1991] 2 Qd R 686, and R v Poynter, Norman and Parker; ex parte AG [2006] QCA 517.
37. [37]
    The Crown tendered two pre-sentence custody certificates.^[16]  Each recorded that Mr Major had spent 149 days in custody between 18 October 2022 and 15 March 2023.  This was not a continuous period.^[17]  The Crown submitted that only one day of pre-sentence custody was “declarable”.  It was 15 March 2023.  The Crown noted, correctly, that the earlier periods totalling 148 days were declared on 15 March 2023, when Mr Major was sentenced in the Magistrates Court for the September-October 2022 offences.
38. [38]
    In sentencing, the judge corrected an error in the later pre-sentence custody certificate, which omitted the two days Mr Major had spent on remand since the sentencing hearing.

The defence submissions at the sentencing hearing

39. [39]
    The written submissions for Mr Major set out his antecedents.  He had been born in Rockhampton, completed Year 10, and left school about halfway through Year 11, when he moved to Woorabinda to work on a cattle station.  He had continued this work, more recently helping his brother and his father on a cattle station near Duaringa.  He was the father of three children, aged 4, 3, and 2.  He was expecting a fourth child to be born about six weeks after the sentencing hearing.  His family noted Mr Major had “started to gain a handle on his anger problems as a result of growing maturity.”
40. [40]
    The written defence submissions chronicled Mr Major’s time in custody and dealt with the legal principles of totality and parity.
41. [41]
    The defence submitted that the sentencing judge was obliged to take into account the 149 days Mr Major had spent in custody between 18 October 2022 and 15 March 2023, noting, of the 25 months since the riot offence, Mr Major had spent just under 13 months^[18] in custody.  Defence counsel urged his Honour to consider “the overall sentence” Mr Major would have received had he been before the Court for sentencing for the riot offence, the January 2022 offences, and the September-October 2022 offences.
42. [42]
    The defence made alternate submissions, depending on whether the suspended sentence was activated.  If it were to be activated, defence counsel submitted for a sentence of three years, with parole eligibility after serving six months.  If the suspended sentence were not to be activated, defence counsel urged a sentence of three and a half years wholly suspended or with immediate parole eligibility.
43. [43]
    His Honour adjourned the sentencing hearing to 15 December 2023, remanding Mr Major in custody.

The sentence

44. [44]
    On 15 December 2023, the sentencing judge ordered Mr Major be imprisoned for four years for the riot offence.  His Honour found the breach of the suspended sentence proved and activated the whole of the six-month suspended sentence.
45. [45]
    In the transcript of his Honour’s sentencing remarks, his Honour expresses the order that “the sentence for the riot offence commence upon the expiration of the activated order for six months’ suspended imprisonment.”  On the verdict and judgment record, the position is reversed.  It records a direction that the term of imprisonment for the activated sentence “is to start from the end of the term of imprisonment … for the offence of riot with the circumstance of aggravation.”  Nothing turns on this inconsistency.^[19]

The sentencing remarks

46. [46]
    It is convenient to consider the judge’s sentencing remarks as they relate to each ground of appeal.

Ground 1: lack of reasons for making the sentence cumulative on the activated suspended sentence

47. [47]
    For Mr Major, it was respectfully submitted that the sentencing judge did not give reasons for the imposition of a cumulative sentence.
48. [48]
    In this appeal, it was common ground that the sentencing judge was obliged to record reasons for the imposition of a cumulative period of imprisonment, rather than a concurrent period, where the parties had made submissions on alternative sentence structures.^[20]
49. [49]
    Without asserting that the sentencing judge provided any specific reason for imposing cumulative sentences, the Crown submitted that his Honour’s reasons were adequate because the basis upon which the judge exercised the discretion to make the sentences cumulative could be inferred from the judge’s remark that:

“Although a matter of discretion, a recent case of Cane^[21] out of the Court of Appeal confirms a discretion to order that also be served cumulatively if activated, and if I do that, the cases of Bahcehan, Degn and Evelyn^[22] confirm that although it is a matter of discretion, it is acceptable to calculate the order of that release from the time of the commencement of the subsequent cumulative period, rather than the overall term.  That is a product of your conviction for further offences whilst on that order, and if that is done, you have brought that on yourself.”

50. [50]
    This submission is not persuasive.  As the sentencing judge identified, in Mr Major’s case, the imposition of a cumulative sentence was discretionary rather than mandatory.  The delay in charging Mr Major with the riot offence and presenting an indictment for it had meant he had served the whole of the sentence imposed for the attempt offence before the sentencing hearing.  There was no sentence on which the sentencing judge was bound to make the riot offence sentence cumulative.  His Honour was dealing with the fixing of a parole eligibility date in the event of a decision to order Mr Major to serve the riot offence sentence cumulatively on the activated suspended sentence.  In other words, the sentencing judge was dealing with a consequence of a cumulative sentence, rather than explaining why a cumulative sentence might be imposed.  One can infer no more than that his Honour appreciated accumulation was a matter of discretion.
51. [51]
    The Crown also submitted that his Honour had “adopted an overall synthesis to arrive at the just sentence consistent with the applicant’s total criminality” and structured the sentence consistently with “his Honour’s overall intended outcome in the context of” four earlier passages in the sentencing remarks.
52. [52]
    The earlier passages were:

    1. First, his Honour’s observation that the operational period of the suspended sentence had “already been extended once” (see [23] above) and that it was “probably missed once in other Court proceedings, with respect” (see [26] above).
    2. Second, the passage at [49]-[50] above, that, if the two sentences were ordered to be served cumulatively, the Court could fix a parole eligibility date after Mr Major began to serve the second sentence.
    3. Third, his Honour’s remark that, “In my view, a sentence in excess of four years’ imprisonment is called for in your case.”
    4. Fourth, the remark, noted at [66] below, that his Honour had “had regard to the sentences imposed for other co-offenders” and “the notional starting point for the others has been up to the four-year mark.”
53. [53]
    With respect, these passages, whether singly or in combination, do not reveal his Honour’s reason or reasons for making Mr Major serve the riot sentence and the activated suspended sentence cumulatively.

Ground 2: the treatment of pre-sentence custody

54. [54]
    The second ground of appeal was that the sentencing judge had erred in failing to consider the whole period Mr Major had spent in custody between committing the riot offence and the sentencing hearing.
55. [55]
    The pre-sentence custody certificates noted the 149 days (about five months) Mr Major had spent in custody between 18 October 2022 and 15 March 2023.  It did not include the additional 242 days (about eight months) he had spent in custody between 21 October 2021 and 31 December 2021 (71 days) and between 22 January 2022 and 12 July 2022 (171 days).
56. [56]
    The first period excluded from the certificates was the 71 days Mr Major spent in custody serving the balance of his sentence for the attempt offence.  The second period was the 171 days he was held on remand for the January 2022 offences, which was declared, accounting for the whole of the sentence of imprisonment imposed by the Rockhampton Magistrates Court on 12 July 2022.^[23]
57. [57]
    In the outline of submissions before this Court, Mr Major’s counsel accepted that none of this additional time could be declared as time already served by Mr Major in respect of the sentence for the riot offence.  This was because in neither of the two periods was Mr Major held in custody in relation to proceedings for the riot offence.^[24]
58. [58]
    The sentencing judge referred expressly to the 171 days Mr Major had spent in prison for the January 2022 offences, and noted it was in addition to the period included in the pre-sentence custody certificate.  His Honour expressly took into account the time served in custody between the notice to appear (5 May 2022) and Mr Major’s release (15 March 2023), which overlapped and included part of this period.^[25]
59. [59]
    I am not persuaded that the sentencing judge erred in the consideration of Mr Major’s pre-sentence custody.
60. [60]
    The other submissions put for Mr Major on this second ground seemed to blend into those on the third ground.  In those respects, they are considered below.

Ground 3: manifestly excessive

61. [61]
    The third ground of appeal was advanced on the basis that:

“the sentence is rendered excessive by the error infecting his Honour’s exercise of the sentencing discretion with respect to consideration of time served in pre-sentence custody.”

62. [62]
    And, that “the imposition of the parole eligibility date as at 12 April 2025 rendered the sentence manifestly excessive.”
63. [63]
    In the outline of submissions on the appeal, counsel for Mr Major explained these contentions.  They submitted that the sentencing judge ought to have considered the totality of Mr Major’s offending, being the riot offence, the January 2022 offences, and the September-October 2022 offences, and the fact that each of these offences was committed during the operational period of the suspended sentence.  Counsel submitted a head sentence of four to five years would appropriately reflect the criminality of all his offending in this period.  They submitted the sentence for the riot offence should have been ameliorated considering Mr Major had already served 290 days (about 10 and a half months) in custody for some of this offending, and the parole eligibility date should have been fixed at about one-third of the notional total sentence, allowing for the period already served in custody.
64. [64]
    His Honour said:

“I have had regard to the sentences imposed for other co-offenders involved in this riot.  Depending on their involvement, the notional starting point for the others has been up to the four-year mark, at least for the ones I have dealt with.”

65. [65]
    The sentencing judge had imposed six of the 20 sentences in the Crown’s table of riot offender sentences.  No transcript of the sentencing remarks for these offenders was tendered.^[26]  However, the Crown’s table records that the facts relevant to each sentence (as set out in paragraph [33] above) were as follows:

    1. Mr Scott was 35 at the time of the riot, had a “lengthy” criminal history, was “not a ringleader”, but “did arm himself with a wooden handle and threw it”, and “climbed onto the roof and stayed there for 6 hours”;
    2. Mr Geehoy was 27 at the time of the riot, had a four-page criminal history for violent and property offending, was “not a ringleader”, but “covered a camera with a towel,” and “armed himself with [a] sprinkler, covered [his] face to avoid detection, held a stolen Indigious [sic] flag, congregated on the roof and failed to comply with directions”;
    3. Mr Palframan was 38 at the time of the riot, had an “extensive” 10-page criminal history, was “not a ringleader” but “armed himself with a pickaxe”, “passed a broomstick to a prisoner inside a cell which allowed that prisoner to be armed”, “struck windows and bars”, “damaged his door to exit his cell” and “was with a group of prisoners on the roof”;
    4. Mr Delta was 29 at the time of the riot, had a “lengthy and serious criminal history”, was “an active participant in the riot,” “was observed sniffing petrol”, “threatened guards, armed himself, threw a Molotov cocktail at guards and went onto the roof”;
    5. Mr Smith was 30 at the time of the riot, had an 11-page criminal history, “played a key role in the commencement of [the] riot in his unit”, “blocked entry of CCOs, threatened ‘to smash’ officers, damaged property including a fridge and security grill to [a] officer’s station”, “helped others gain access to [a] officer’s station and gained access himself”, “armed” himself “with electrical cord”, “helped others gain access to fire hose which others used to flood the unit”, “used a megaphone and made demands to CCOs”, and “was a member of a group that went to secure unit and made threats”; and
    6. Mr Freeman was 36 at the time of the riot, had an “8-page ‘very bad’ criminal history for violence, drug and property offending”.  He was “not a ringleader”, but “encouraged other prisoners [who] caused property damage”, and he “escaped his unit, refused to follow direction[s], armed himself with a boomerang, congregated on [the] roof and consumed substances.”  He was present when prisoners “threw hot water in [the] direction of CCOs” and “participated” in the riot for “around 9 hours.”
66. [66]
    The judge’s sentencing remarks for these sentences were not before this Court.  Accepting his Honour’s recollection that the “starting point” in these had been “up to the four-year mark”, then there must have been significant reductions to reach the sentences his Honour imposed.
67. [67]
    Mr Morton was one of the 20 “co-offenders” in the Crown’s table.  He had been sentenced by Morzone KC DCJ in the District Court at Brisbane, together with Mr Bickford and Mr Kepa, on 29 September 2023, two weeks before Mr Major was sentenced.  The Crown tendered a transcript of the sentencing remarks of Morzone KC DCJ.  The Crown Prosecutor told the sentencing judge that Morzone KC DCJ had indicated the “starting point” for Mr Morton’s sentence “could well have been up to 4 years imprisonment.”
68. [68]
    Morzone KC DCJ did use those words.  They were followed by his Honour’s conclusion that “it does seem to me that as I look at those things your sentences should be towards the lower end of the range.”  His Honour continued:

“You’ve cooperated to the extent that this matter is concluded.  These cases take a lot to prove because it involves a lot of evidence and CCTV footage and the like to piece together.  And you’ve saved the community significant time and cost.”

69. [69]
    There was no relevant difference between Mr Major’s cooperation and Mr Morton’s.
70. [70]
    In sentencing remarks, Morzone KC DCJ had described Mr Morton’s relevant conduct in this way:

“Mr Morton, you were actively involved, including climbing the fence and cheering as other prisoners escaped from a nearby unit.  You tried to damage the gate of the exercise yard with other prisoners, which was eventually open for multiple prisoners to escape.  You threw rocks and things at officers, verbally threatened and ran towards them with a broom handle.  On the roof you were holding a broken broom handle with other prisoners having various implements including a pickaxe.  You assisted other prisoners in breaching the perimeter fence, allowing some prisoners to set fire to a grassy area.  You broke a glass door to get into a residential unit and you entered an officer’s station, smashing a door and using a pickaxe to do so.  You used the pickaxe to damage a security camera in the residential unit.  You also … carried various other things such as a whipper snipper and a wooden stick resembling a spear.  You joined in demands for reinstatement of the substituted drug program and cigarettes, … which you had needed.

You were with others, painting your arms, legs and face to cover tattoos, holding signs with offensive messages, and arming yourself with a pitchfork and a bat, drinking unknown liquids ultimately until you surrender to succumb to treatment because of the extended period and that behaviour.”

71. [71]
    Mr Morton’s offending conduct was similar to Mr Major’s conduct.  Although Mr Smith’s conduct, described at [65](e) above, seems closer still.
72. [72]
    Morzone KC DCJ had described Mr Morton’s criminal history as “dreadful”.  At the time of the riot, Mr Morton was serving a sentence of four and a half years for violent offences against three people.  Mr Major was serving 12 months for the attempt offence.  Mr Morton had served 14 months in custody, following the riot, which could not be declared.  Mr Major had served about 13 months.  Like Mr Major, Mr Morton’s was an early plea of guilty.  One material distinction was that Mr Morton was six years younger than Mr Major, being 20 at the time of the riot and 22 at sentence.
73. [73]
    To the extent the sentencing judge drew on the remarks of Morzone KC DCJ, the differences between Mr Major and Mr Morton do not explain why his Honour sentenced Mr Major to four years’ imprisonment with parole eligibility after 16 months, when Morzone KC DCJ had sentenced Mr Morton to 18 months imprisonment with immediate parole eligibility.
74. [74]
    The sentencing judge said the decision in SDN provided “some assistance.”  In SDN, the appellant was a 29 year old who participated in a riot at Woodford Correctional Centre with 13 other prisoners.  This Court set aside a four-year sentence and substituted three years’ imprisonment with immediate parole release, with the appellant having already served 17 months.  The substituted head sentence reflected the overall criminality of SDN’s offending, including in respect of two domestic violence offences.
75. [75]
    His Honour described Kiripatea, with respect correctly, as “a dated case of aggravated mutiny”.  Nonetheless, his Honour thought it, like SDN, provided “some assistance.”  In Kiripatea, the Court set aside a six-year sentence for mutiny with circumstances of aggravation.^[27]  The sentences had been imposed after conviction at a trial.  The mutiny sentence had been made cumulative on an 18-month sentence for dangerous driving.  This seven and a half year period of imprisonment was to be served cumulatively on the ten years and nine months the prisoner was serving at the time of the mutiny.  With remissions and parole eligibility, the prisoner would have had to serve at least five years in custody before commencing to serve the mutiny and dangerous driving sentences.  The Court substituted a sentence of four years imprisonment.
76. [76]
    His Honour found Poynter, Norman & Parker to be “of little to no assistance.”  In respect of each defendant in this case:

    1. Poynter’s 12-month sentence of imprisonment to be served by way of an “intensive correction order” for taking part in a riot was set aside and a sentence of 15 months imprisonment, with parole release after five months was substituted in its place.
    2. Norman’s 12-month sentence of imprisonment to be served by way of an “intensive correction order” for unlawfully damaging a building while part of a riotous assembly with others was set aside and a sentence of 18 months imprisonment, with parole release after four months was substituted in its place.
    3. Parker’s 18-month sentence, suspended after six months with an operational period of three years, for the same offence as Norman, was set aside and a sentence of two years imprisonment, with parole release after about nine months was substituted in its place.
77. [77]
    The sentencing judge observed:

“In the absence of a truly comparable case, consistent with the cases of Ponting and Goodwin, I revert to the general sentencing principles to decide what I think is a just sentence, in all of the circumstances.  In my view, a sentence in excess of four years’ imprisonment is called for in your case.”

78. [78]
    The sentencing judge said he had reduced the penalty imposed on Mr Major “to reflect the guilty plea”, which he said was “the extent of the cooperation” with the criminal justice system.  The sentencing judge did not identify any other consideration tending to mitigate the sentence for Mr Major.
79. [79]
    The sentencing judge described Mr Major as “a prime instigator, continuing agitator, and willing participant” in the riot.  With respect, his Honour may have overstated Mr Major’s role.  In the schedule placed before the Court as the agreed basis of sentence, Mr Major was “an instigator in the commencement of the riot.”
80. [80]
    His Honour’s description also went somewhat beyond the submission made by the Crown Prosecutor in the written outline that:

“[Mr Major] was one of the instigators at the commencement of the riot and was considered one of two leaders by Correctional Officers who were trying to defuse the situation before the matter got out of hand in unit S 4 which is where the riot started.”

81. [81]
    This Crown’s submission that the riot started in S 4 itself appears contrary to the agreed schedule, which stated that the riot commenced in other secure units, S 3, S 5 and S 6.  In oral submissions, the Crown Prosecutor had also departed from the agreed schedule, telling the sentencing judge that following Mr Major’s response to the lock down decision:

“As a result, other people in the unit, then became quite aggravated.  … Other members in the unit, then, set light to a wheelie bin, and it was, in my submission, Mr Major and two others who were clearly responsible for the riot starting in that unit.”

82. [82]
    With respect, correctly, the applicant did not assert that the difference between being considered a “prime instigator” and an “instigator” could found a ground of appeal.
83. [83]
    However, the assumed primacy of Mr Major in the instigation of the riot may explain why the sentencing judge imposed a sentence significantly in excess of any of the sentences imposed on the other participants in the riot for the riot offence.  His Honour had fixed this penalty after reducing a higher notional sentence to account for Mr Major’s cooperation by his early guilty plea and by taking some account of the time spent in custody that could not be declared.
84. [84]
    By ordering that Mr Major serve the activated six-month sentence cumulatively on the four-year sentence, the sentencing judge imposed a very significant total punishment.  In common with the absence of reasons for making Mr Major serve the riot sentence and the activated suspended sentence cumulatively, his Honour gave no apparent consideration of the potential effect of the cumulative sentences on Mr Major.
85. [85]
    Taking all these matters into account, while it could be said that the four-year sentence imposed for the riot offence was high, it was not manifestly excessive.

Re-sentencing

86. [86]
    If the application and appeal were to succeed because the sentencing judge failed to give reasons for making Mr Major serve the riot sentence and the activated suspended sentence cumulatively, then Mr Major should be resentenced.
87. [87]
    Mr Major’s early guilty plea entitles him to a degree of leniency.  In my view that leniency should be reflected in both the head sentence and the parole eligibility date.  He has a concerning criminal history.  The eight-month period out of custody immediately preceding his sentence had been “one of his longest in his adult life.”  This might indicate both maturity and correction in his life.  Like the sentencing judge, I would take into account the seven months Mr Major spent in custody between the notice to appear for the riot offence and his release, which cannot be declared, even though they were served as a consequence of other offending.^[28]
88. [88]
    The sentences imposed on his co-offenders ranged from nine months to three years.  Like Mr Major, all had pleaded guilty.  A sentence of three and a half years for Mr Major, as one of the instigators of the riot, would not offend the parity principle.
89. [89]
    If the activated suspended sentence were to be served cumulatively on the riot sentence, then considerations of totality would call for consideration of the effect of imposing a total of four years’ imprisonment, following the extended periods Mr Major in custody between the offending and the sentence, which could not be declared but should be taken into consideration.  The long delay in bringing the charge, presenting the indictment, and scheduling the sentencing hearing is another matter that calls for some moderation of the total sentence.
90. [90]
    In the circumstances, I would not order Mr Major to serve the activated suspended sentence cumulatively on the riot offence sentence.  I would order that he serve both sentences concurrently, as the Crown submitted at the sentencing hearing.
91. [91]
    Considering his early plea of guilty, I would fix Mr Major’s parole eligibility date after he had served a third of the head sentence.  That would be 12 February 2025.

Proposed Orders

92. [92]
    I would therefore order that:

    1. The application for leave to appeal be granted.
    2. Appeal allowed.
    3. The sentence imposed by the District Court at Rockhampton on 15 December 2023 be varied as follows:
       1. in respect of count 1 on the indictment, the four-year sentence of imprisonment be set aside and substituted with a sentence of three and a half years imprisonment;
       2. the applicant serve the sentence of imprisonment imposed in respect of count 1 on the indictment concurrently with the activated suspended sentence imposed by the Woorabinda Magistrates Court on 12 April 2021; and
       3. the date the applicant be eligible for parole be fixed at 12 February 2025.
93. [93]
    HINDMAN J:  I agree with the orders proposed by Bradley J and with his reasons.