YSD v Commissioner of Police[2022] QDC 92

DISTRICT COURT OF QUEENSLAND

Nature of appeal and grounds

1. [1]
   On 9 November 2021 in the Magistrates Court at Thursday Island the appellant pleaded guilty to three offences of contravention of a domestic violence order, aggravated offence, pursuant to s 177(2)(a) of the Domestic and Family Violence Protection Act 2012 (Qld).

2. [2]
   He was convicted and sentenced:

1. on charge 1, to three months’ imprisonment;

2. on charge 2, to nine months’ imprisonment; and

3. on charge 3 to six months’ imprisonment,

to be served concurrently, wholly suspended for an operational period of five years.

3. [3]
   The appellant appealed against his sentences pursuant to s 222 of the Justices Act 1886 (Qld) (JA) on the sole ground that the length of the operational period resulted in sentences that were manifestly excessive.

4. [4]
   The Crown agreed that the sentence was excessive on that basis, and raised an additional matter said to be an error: that the learned Magistrate did not take into account or declare the presentence custody.

5. [5]
   At the hearing of the appeal, I indicated that I would allow the appeal and vary the orders made by the learned Magistrate to set aside the suspended sentences and order an immediate parole release date, and to declare the presentence custody. The hearing was adjourned to facilitate the appellant’s appearance. On 8 April 2022 the appellant appeared by audiovisual link and the orders were made. These are my reasons.

Relevant statutory framework and principles

6. [6]
   An appeal pursuant to s 222 JA is by way of rehearing on the original evidence given before the Magistrate, and any new evidence adduced by leave: s 223 JA.

7. [7]
   On the hearing, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just: s 225(1) JA. 

8. [8]
   In order to succeed, the appellant must demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.^[1]

9. [9]
   The relevant principles regarding appeals against sentence are those set out in House v The King.^[2]  There are two categories of appeal grounds:  those that allege a specific error by the first instance decision-maker and those that allege a miscarriage of the sentencing discretion resulting in a sentence that is manifestly excessive or inadequate.

10. [10]
    In cases in which a specific error is established, ‘the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.’^[3]

11. [11]
    It is not necessary however to identify a particular error in the exercise of the discretion. ‘There may be cases where the sentence is so "unreasonable or plainly unjust" in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive.’^[4]

12. [12]
    In cases of complaints of manifest excess, an appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences that could have been imposed upon the appellant for this offence.^[5]  It is not a sufficient basis of intervention that the appellate court may have imposed a different sentence in the exercise of the sentencing discretion.^[6]

Relevant facts

13. [13]
    The appellant was 34 years old at the time of the offending and at sentence. The complainants were his former partner, a woman aged 32 years old, and his daughter, aged 15 years.

14. [14]
    On 19 September 2018 a domestic violence protection order was made in the Thursday Island Magistrates Court naming the appellant as respondent, his former partner as the aggrieved, and three children and two relatives of the aggrieved as named persons. The appellant was present when the order was made.

15. [15]
    The conditions of the order were:

1. The respondent must be of good behaviour towards the aggrieved and must not commit domestic violence against the aggrieved.

2. The respondent must be of good behaviour towards the named persons and must not commit associated domestic violence against them and where the named person is/are a child/children must not expose the child/children to domestic violence.

3. The respondent must not approach to [sic] within 100 m of where the aggrieved/any named person lives or works. Except for the purposes of having contact with the children but only as set out in writing between the parties or in compliance with an order under the Family Law Act. Except with the written consent of the aggrieved, including by text message.

4. The respondent must not contact or attempt to contact or arrange for someone else (other than a lawyer) to contact the aggrieved/any named person by any means whatsoever including telephone, text or internet. Except when appearing personally before a court or tribunal. Except when attending an agreed conference, counselling or mediation. Except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order under the Family Law Act. Except with the written consent of the aggrieved, including text message.

16. [16]
    That order remained in force until 18 September 2023.

17. [17]
    The three offences occurred on 6 November 2021.

18. [18]
    Charge 1 was a breach of the ‘no contact’ condition. On 6 November 2021 at about 7:30pm the appellant accompanied the aggrieved to the home where she lived with the three children. The appellant entered the home. The aggrieved had not given him consent, written or otherwise, to attend the residence.

19. [19]
    Charge 2 related to abuse, threats and intimidation towards the named child. The appellant became angry when found that the child had forgotten to put clothes into the dryer in the laundry. He immediately began yelling at her words to the effect ‘you can’t forget to do your fucking jobs’ and ‘you’re a dumb cunt’. The appellant then threatened the child, saying ‘I will fucking drag you’. She understood this to mean he was threatening to hit her. The appellant walked in and out of the house, yelling and swearing. He went into the courtyard and began slinging things around and damaging property. He continued to walk past the child and swear at her. The child became so fearful of the appellant that she had a panic attack. Her mother tried to console her to calm her, and told the appellant to leave. He did not leave. The child contacted family members and asked them to collect her. She left the home because she feared for her safety.

20. [20]
    Charge 3 related to damage to property. The appellant walked back into the laundry and a loud noise was heard, like the sound of metal being punched. He broke the door handle of the clothes dryer so it could not close.

21. [21]
    At about 8:15pm police attended. The appellant told police he was disciplining the child for not doing chores. He admitted swearing at the child and telling her to do her chores. The aggrieved told police that she did not give permission to the appellant to attend the dwelling.

22. [22]
    The appellant declined the opportunity to participate in an interview with police. Bail was opposed. The appellant was remanded in watch house custody from 6 November 2021 to 9 November 2021. A period of two days in pre-sentence custody was declarable pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld) (PSA).  The police prosecutor did not assist the learned Magistrate by providing a presentence custody certificate (s 159A(4A)) or submissions with respect to s 159A of the PSA.  On appeal, with the court’s leave and without objection, the Crown tendered the presentence custody certificate.

Antecedents and criminal history

23. [23]
    The appellant had an eight page criminal history, which included previous convictions for domestic violence offences.

24. [24]
    Relevantly, the appellant had been convicted of 10 charges of breach of domestic violence order; four charges of contravention of domestic violence order; four charges of contravention of domestic violence order (aggravated offence); two charges of wilful damage; three charges of assault occasioning bodily harm, and one charge of common assault. All of those convictions related to the same adult complainant, his former partner. They involved actual violence against his former partner and threats to kill her. Much of his offending was witnessed by his daughter (the child complainant in the subject proceeding) beginning from when she was five years old. Below is a summary of his relevant convictions:

25. [25]
    On 22 June 2011 the appellant was sentenced to a head sentence of 12 months’ imprisonment with an immediate parole release date for three breaches of a domestic violence order and two assaults occasioning bodily harm, on separate dates.

26. [26]
    On 9 May 2012 the appellant was sentenced to one month’s imprisonment for breach of an order, to be served cumulatively, with an immediate parole release date.

27. [27]
    On 5 February 2013 the appellant was sentenced to a head sentence of 15 months’ imprisonment suspended after serving two months for an operational period of 15 months for assault occasioning bodily harm deprivation of liberty, and two contraventions of domestic violence orders. That involved breaking into his former partner’s house, threats to kill, choking, placing a pillow over her face, punching, knocking her to the ground, kicking, and stomping on her head. Again, the child witnessed this.

28. [28]
    On 20 October 2014 the appellant was sentenced to a head sentence of 12 months’ imprisonment with parole after serving four months for four offences of contravention of domestic violence order committed on three separate dates.

29. [29]
    On 19 September 2018 the appellant was sentenced to a head sentence of 12 months’ imprisonment for three offences of contravention of domestic violence order, aggravated offence, as well as a wilful damage (domestic violence offence) and a common assault (domestic violence offence), committed on two separate dates. He was given an immediate parole release date after serving 85 days presentence custody, which was declared as time served.

30. [30]
    The most recent entries in the appellant’s criminal history were in 2019. In 4 February 2019 he was sentenced to two months’ imprisonment suspended for an operational period of two years for contravention of domestic violence order, aggravated offence, and to community service for public nuisance. On 24 July 2019 he was sentenced for breaching that suspended sentence and it was activated in part. The operational period of that suspended sentence expired in February 2021, several months before the appellant committed the subject offences.

31. [31]
    In addition to those convictions for domestic violence, the appellant had convictions for drug, property and other violent offending for which he had received terms of imprisonment. In 2011 he was sentenced for a failure to appear and received a suspended sentence. That was breached and in 2012 it was ordered to be served in full, cumulative on other terms.

32. [32]
    Summarising, the appellant had been sentenced to community based orders, and terms of imprisonment served by way of suspended sentences and parole. He had breached probation twice and continued to offend whilst subject to probation. He had breached suspended sentences three times and committed offences whilst subject to parole, although not on this occasion.

33. [33]
    The appellant was a Torres Strait Islander man. No material was placed before the learned Magistrate about his performance in custody, either on remand or when serving out previous sentences, or completion of courses to address substance abuse or violence, nor was there any submission provided by a Community Justice Group. 

34. [34]
    He entered an early plea of guilty and expressed remorse.

35. [35]
    The maximum penalty for the offence was five years imprisonment.

Submissions and sentencing remarks in the Magistrates Court

36. [36]
    In the Magistrates Court, the police prosecutor tendered a bundle of material without objection including a statement from the child (relevant to the impact on her).

37. [37]
    In that statement, the child said that the appellant had been staying with them since October, when he was only meant to visit and return to another island. When he said to her ‘I will fucking drag you’ the child was afraid that he would come and hit her. She did not feel safe. She rang her relatives to collect her because she thought he was going to kill her. He had become very angry. He had been violent towards her mother in the past and she had seen it. While on the phone to her uncle, she had a panic attack. She dropped to the floor, started sweating and had trouble breathing. Her knees felt weak and her head was dizzy. Her mother hugged her and tried to get her to focus on her breathing. The child went outside to wait for her uncle to collect her.

38. [38]
    The police prosecutor submitted for a head sentence in the range of nine to 12 months’ imprisonment, attached to charge two. He did not submit on the structure of the imprisonment imposed. He relied upon the sentencing remarks of Everson DCJ in the matter of The Queen v Peebles dated 8 November 2017, and the decision of Gibuma v Queensland Police Service [2016] QDC 183.

39. [39]
    Peebles was a 22 year old offender with a considerable criminal history for violence sentenced after trial for a single offence of aggravated contravention of domestic violence order. The offence involved verbal abuse only. He was on remand for other offences, had committed further offences while in custody, and his presentence custody could not be declared. He was sentenced to three months’ imprisonment with an immediate parole eligibility date.

40. [40]
    Gibuma was resentenced on appeal to a head sentence of 15 months’ imprisonment with an immediate parole release date for five offences including two contraventions of domestic violence orders (simpliciter), two breaches of bail, and one failure to comply with reporting condition.  The contraventions involved, on one occasion, verbal abuse and pushing the complainant causing her to fall over, and on another occasion, verbal abuse. The offender was a 61 year old man with ‘a particularly serious criminal history’ including offences of violence. The court described his behaviour as that of a pest and a nuisance, but not particularly violent on this occasion. He had by the time of the appeal hearing served 170 days presentence custody, which was declared. 

41. [41]
    In this matter in the court below, the prosecutor referred to the appellant’s extensive history of domestic violence against the same complainant, the damaging effect that violence and the current offending had had on the appellant’s daughter, and the appellant’s ongoing non-compliance with court orders. He also referred to the need for both general and specific deterrence as well as the prevalence of the offending in the community. He did not assist the learned Magistrate by the provision of a presentence custody certificate, nor did he make any submissions about that.

42. [42]
    The appellant’s solicitor noted the early plea of guilty, the fact that the offence did not involve any actual violence, and submitted that a sentence of imprisonment was a last resort. He referred to the appellant’s education to year 12, relatively good behaviour for the previous two years, his good work history, that he was in full time employment, living separately, financially supporting his family, and his prospect of taking up further employment. The solicitor submitted that the appellant was remorseful. He referred to the appellant spending two days in presentence custody but did not assist the learned Magistrate with any submissions about taking into account or declaring the presentence custody. He accepted that a sentence of imprisonment was within range. He submitted that the appellant needed help in relation to his offending and that a probation order or, if the court were minded to order imprisonment, an immediate parole release date to provide the appellant with assistance in his ‘anger issues' would be appropriate.

43. [43]
    In her sentencing remarks, the learned Magistrate observed:^[7]

I understand, from my experience of working here, that to use the expression “I will drag you”, is commonly seem [sic] as a violent act, generally against women by men, of dragging the woman along the street or road or about, by the hair, clothing or other parts of their body.  It is enormously disturbing that you would say that to your 16 year old daughter.

There was no challenge to that finding on appeal.

44. [44]
    Her Honour imposed sentences of imprisonment and explained that she intended to suspend the sentences for the longest possible period:^[8]  ‘I have made it that long because there is an overwhelming likelihood that you would breach the order. You must know, if you breach this order, overwhelmingly likely you would do actual imprisonment.’  Her Honour referred to the appellant being in custody,^[9] but did not expressly take into account the presentence custody nor declare it pursuant to s 159A PSA.

Discussion

45. [45]
    The penalties for contravening a domestic violence protection order have increased, signalling to the courts the increased seriousness with which these offences are to be viewed.

46. [46]
    When the Domestic and Family Violence Protection Act 2012 (Qld) (DFVPA) was introduced, the penalty was three years imprisonment if the respondent had previously been convicted within five years; otherwise, two years imprisonment. In 2015 the penalty was increased to a maximum penalty of five years imprisonment (if there was a previous conviction); otherwise, three years imprisonment: s 177(2) Criminal Law (Domestic Violence) Amendment Act 2015 (Qld). In 2016 the PSA was amended to insert subsection 9(10A) which requires a sentencing court to treat the fact an offence is a domestic violence offence as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.

47. [47]
    The appellant was a mature recidivist offender with a relevant criminal history including multiple convictions for domestic violence offences involving the same woman in the presence of the same child.

48. [48]
    His offending was in flagrant breach of a ‘no contact’ condition, involved threats of violence and verbal abuse to a child, and damage to property. Although the appellant did not inflict any actual physical violence on his former partner and child on this occasion, he threatened violence, damaged property, and his offending adversely affected their safety and welfare.

49. [49]
    Actual or threatened physical violence is only one form of domestic and family violence. Another is emotional or psychological abuse.^[10] That may include verbal, non-verbal or physical acts by the perpetrator that are intended to exercise dominance, control or coercion over the victim; degrade the victim’s emotional or cognitive abilities or sense of self-worth; or induce feelings of fear and intimidation in the victim.^[11]  Damaging property is often part of a range of behaviours used by perpetrators of domestic and family violence so as to exert control over or induce fear in the victim.^[12]

50. [50]
    There was material before the court to establish that the child suffered adverse emotional and physical harm. It is well established that childhood exposure to domestic and family violence has the potential to cause significant harm.^[13]

51. [51]
    All of those matters, considered with the authorities relied upon, supported a term of imprisonment as the appropriate penalty in all the circumstances of the case. Imprisonment was appropriate to reflect the sentencing purposes of deterrence, both general and personal, denunciation, and protection of the community. The appellant did not contend otherwise on appeal.

52. [52]
    In addition to the cases referred to in the Magistrates Court, on appeal the Crown referred to PFM v Queensland Police Service [2017] QDC 210, MEG v Commissioner of Police [2017] QDC 302, NVZ v Queensland Police Service [2018] QDC 216, and R v Wano; Ex parte Attorney-General (Qld) [2018] QCA 117.

53. [53]
    In PFM v Queensland Police Service, the appellant pleaded guilty to one count of contravention of a domestic violence order which he committed while on parole for unrelated offending. The maximum penalty was three years imprisonment (as opposed to the five years for the subject appeal). Contrary to ‘no contact’ and ‘ouster’ conditions, the appellant arrived at the aggrieved’s house without her consent one week before he was due to spend time with his son in the holidays. He stood in her driveway. The aggrieved saw him, retreated into the house and called the police. The defendant called her name and her son’s name three times. He also said words to the effect, ‘If it was a problem you could’ve at least told me. I have come 2500 kilometres to get [him].’ There was no actual violence or threat of violence. He was 51 years old and had a relevant criminal history including 13 breaches of domestic violence orders over 12 years for which he had been sentenced to short terms of imprisonment, the longest of which was three months. On appeal, because of issues with totality and cumulation, the court reduced the sentence from four months’ imprisonment to one month’s imprisonment, to be served cumulatively, wholly suspended for an operational period of six months.  This case involved only a single offence of contravention simpliciter, with a lower maximum penalty, for less serious conduct. As a result, it is of little utility.

54. [54]
    In MEG v Commissioner of Police, the appellant was a very young woman who pleaded guilty to seven offences: contravention of a domestic violence order, aggravated offence; assault or obstruction of a police officer as a domestic violence offence; possession of dangerous drugs; contravening a direction; contravention of a domestic violence order simpliciter; authority for controlled drugs; and failure to properly dispose of a syringe or needle. She was sentenced to head sentences of six months and four months’ imprisonment respectively for the contravention of a domestic violence order offences with release on parole after serving two months. The breaches of domestic violence orders related to a domestic violence order which had been made in favour of her mother as the aggrieved and her son as a named person. She had threatened to kill herself and her son. Her mother had been quite concerned that she might carry out those threats. The appellant was a young woman with a drug use problem. Her criminal history was not discussed. The court found that the Magistrate erred on the basis that he denied natural justice. The appellant was resentenced to two months’ imprisonment. She had by then served two months in custody and been released on parole. 

55. [55]
    In NVZ v Queensland Police Service, the appellant pleaded guilty to one charge of contravening a domestic violence order, aggravated offence. The conduct occurred during court proceedings while the appellant was in custody and involved him verbally abusing and threatening to kill the aggrieved and her children. The appellant was 31 years old and had a four page criminal history of property, drug and violence related offences. Relevantly, he had been dealt with for breaches of domestic violence orders on seven occasions. He had been sentenced to fines and short terms of imprisonment, the longest of which was six months. For the single offence, he was sentenced to nine months’ imprisonment with an immediate parole eligibility date after spending 36 days in pre-sentence custody. Seventeen months of non-declarable pre-sentence custody was taken into account.  The appeal was dismissed.

56. [56]
    In this appeal, there was no challenge to the terms of imprisonment imposed, nor the head sentence of nine months’ imprisonment. Although not binding, the cases referred to support the submission that the head sentence imposed was not beyond the proper sentencing range.

57. [57]
    However, the parties jointly contended that the imposition of a five year operational period was disproportionate to the gravity of the offences, and resulted in a sentence that was manifestly excessive

58. [58]
    When sentencing for a series of offences of a similar character committed in a single course of conduct it was open to impose a head sentence on the most serious offence to reflect the total criminality of all of the offences,^[14] as the learned Magistrate did. 

59. [59]
    In the Magistrates Court, no party submitted for a wholly suspended sentence. The learned Magistrate was, of course, not bound by the submissions of the parties. But the appellant’s relevant criminal history, his previous breaches of community based orders and suspended sentences, and his reoffending while on parole (although not on this occasion), suggested that he required supervision and support while in the community.

60. [60]
    A wholly suspended sentence on all counts would not achieve that. There is no requirement or power in Queensland to attach additional supervisory conditions or programs to a suspended sentence for a single offence. Part 8 of the Penalties and Sentences Act 1992 does not give the court power to impose conditions such as those that can be attached to a probation order (s 93) or an intensive correction order (s 114).

61. [61]
    The court has greater flexibility in imposing a form of supervised order when sentencing for two or more offences. For example, a wholly suspended sentence on one count could be combined with probation for another offence.^[15]

62. [62]
    In this case, the requirement for support and supervision in the community could have been achieved by structuring the sentence by imposing a term of imprisonment, wholly suspended, for an appropriate operational period on one count coupled with a period of probation with conviction recorded on another count. Alternatively, by releasing the appellant on court ordered parole.

63. [63]
    An order of suspended imprisonment under s 144(1) of the Penalties and Sentences Act 1992 may only be made if the court is satisfied that it is appropriate to do so in the circumstances (s 144(2)).

64. [64]
    A suspended sentence occupies a space in the sentencing hierarchy as the least onerous of the sentences of imprisonment. It can be a useful tool to both ensure compliance with a regime of rehabilitation and, by the imposition of a gaol term, send a signal to the offender and the community that the offence has been treated seriously. A suspended sentence may often be appropriate for a first time offender who has committed a serious offence but does not require program support or supervision and who has already demonstrated some rehabilitation. A wholly suspended sentence may have particular utility where an offender has a low risk of reoffending.

65. [65]
    The learned authors of the Queensland Sentencing Manual observe^[16]:

It is suggested therefore that Parliament intended that the suspended sentence option not be used in the case of an offender requiring close supervision. Imprisonment up to six months followed by probation (Penalties and Sentences Act 1992, s 92(1)(b)), an intensive correction order (s 112) or, if the offence is so serious as to require a longer period of imprisonment, a fixed term with a recommendation for parole, should be utilised in such a case. These orders ensure that at some stage, in all but the exceptional case, the offender will be released back into the community during the course of the term of imprisonment, subject to supervision.

It is suggested therefore that the suspended sentence is an option that should be used sparingly. It is particularly suitable in cases involving offenders who should receive a term of imprisonment, and who should be given one last chance to avoid an actual gaol term or a lengthy gaol term, but who are not in immediate need of supervision. For these reasons it is suggested that a partly suspended sentence should be used even more sparingly than a wholly suspended sentence, particularly in light of the wording in s 144(4) of the Penalties and Sentences Act 1992.

…

See also the observations of McKenzie J (with whom the Chief Justice and Davies JA agreed) in R v Ross [2004] QCA 21 where his Honour said at [6]:

‘Suspension of a sentence rather than an order of eligibility for early release is not something given as a matter of course. Whether an order for suspension is appropriate in a particular case will depend on a range of factors. Factors personal to the prisoner, particularly any that indicate that he may need the benefit of supervision and assistance available under the post-prison community based release system, which would not be available if the sentence is suspended, are in my view, relevant.’

66. [66]
    If a court orders that a term of imprisonment be partly or wholly suspended, it must state an operational period during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended sentence: s 144(5).

67. [67]
    In Dinsdale v The Queen (2002) 202 CLR 321 the High Court explained that the proper approach to imposing a suspended sentence involves two stages: first, a decision that only a custodial sentence is appropriate, i.e. that a term of imprisonment should be imposed; and secondly, that that sentence should be suspended.  In Queensland, that involves two distinct steps: the imposition of a term of imprisonment of five years or less, and a determination by the court that it is appropriate in the circumstances that the imprisonment be suspended in whole or in part.

68. [68]
    A suspended sentence should not be employed against an offender who previously would have been sentenced to a less serious sentence than imprisonment. Conversely, a court should not order a longer sentence of imprisonment than otherwise would have been imposed had the sentence not been suspended, or impose an operational period so long it sets an offender up to fail.

69. [69]
    In this case there is no dispute that a sentence of imprisonment was appropriate. The learned Magistrate did not provide reasons for why she opted for suspension rather than setting a parole release date, nor did she state the requirements of s 144(5) when ordering the suspended sentence. The inadequacy of the reasons in those respects was, in my respectful view, also an error.

70. [70]
    The operational period starts on the day the order is made and must be not less than the term of imprisonment imposed and not more than 5 years: s 144(6). The legislation does not otherwise prescribe the length of the operational period.

71. [71]
    The Queensland Sentencing Advisory Council recently considered suspended sentences in its report on Community-based sentencing orders, imprisonment and parole options – Final report.^[17]   It noted that there is little guidance at appellate level that directly addresses the appropriate relationship between the head sentence imposed and the length of operational period.^[18] 

72. [72]
    R v Hartnett [2001] QCA 512 concerned an appeal against sentence on the basis of manifest excess where the appellant was sentenced to two and a half years’ imprisonment suspended after serving nine months for an operational period of four years (for three counts of unlawful use of a motor vehicle). The applicant submitted that the sentence should have been lower but also that the operational period of four years was particularly harsh because it extended his liability to serve the balance of the period of imprisonment well beyond the notional finishing point of the sentence. That was said to offend the requirements of Part 8 of the PSA that there be a proportionality between a suspended sentence and the operational period. In dismissing the appeal, Chesterman J (McPherson JA and Mackenzie J agreeing) said^[19]:

Section 144 of the Penalties and Sentences Act does not in terms impose a requirement of proportionality between the length of a suspended sentence and its operational period, though I would accept that generally there should be some proportionality.

The section confers a wide discretion to be exercised according to the particular circumstances of each case. The only statutory requirements are that the Court when imposing a suspended sentence must state an operational period during which the offender must not commit another offence punishable by imprisonment if he is to avoid being sent to gaol for the suspended portion of the sentence and the operational period must be not less than the term of imprisonment imposed and be not more than five years. …

A shorter operational period and/or reduction in the suspended term will reduce the risks for the applicant should he reoffend. However, in my view, a sentencing Judge is entitled to structure a suspended sentence in such a way as to provide a substantial incentive for an accused not to reoffend. This was done here. 

73. [73]
    In R v Kelly [2006] QCA 467 a 51 year old offender with a substantial and ‘concerning’ criminal history was sentenced after trial to four months’ imprisonment suspended after one month with an operational period of five years for wilfully and unlawfully killing a dog.  He was also fined $5,000.  His application for leave to appeal against sentence was granted and his appeal against sentence was allowed to the extent that a $1,000 fine was substituted for the $5,000 fine. McMurdo P did not disturb the operational period, finding at [12] that ‘because of his demonstrated and worrying tendency towards vigilantism, the judge was entitled to impose the lengthy five year operational period.’ 

74. [74]
    In practice, the operational period for a suspended sentence is often longer than the head sentence itself. The appropriate length of the operational period necessarily will turn upon the circumstances of the particular case, including the offender’s criminal history and their prospects of rehabilitation.

75. [75]
    The principle of proportionality acts as a general limiting principle on sentencing, including for the purposes of setting an appropriate operational period.

76. [76]
    Operational periods are designed to persuade the offender to not break the law during their duration. For the duration of the operational period the offender is exposed to the risk or contingent liability that if they commit an offence punishable by imprisonment, on breach proceedings they may be returned to custody to serve all or some of the suspended imprisonment.

77. [77]
    There is a presumption in favour of activation of the term of imprisonment held in suspense on breach by reoffending. Pursuant to s 147(2) of the Penalties and Sentences Act 1992, in dealing with an offender for a breach of a suspended sentence, the court must order the offender to serve the whole of the suspended imprisonment unless it is of the opinion that it would be unjust to do so.

78. [78]
    The longer the operational period, the more time and opportunity an offender has to reoffend. At the risk of oversimplifying, some research from the Queensland Sentencing Advisory Council suggests that offenders sentenced to wholly suspended sentences with longer operational periods generally are more likely to reoffend than those with shorter operational periods.^[20]  Reviews of suspended sentences in other jurisdictions have commonly raised concerns about  ‘net widening’ (offenders being sentenced to imprisonment who would otherwise have received a non-custodial sentence) and ‘sentence inflation’ (longer prison sentences being imposed than if the sentence had been ordered to be served immediately).^[21]

79. [79]
    The length of the operational period must be proportionate to the offending and the term of imprisonment imposed. The High Court has recognised that sentencing is not a mathematical exercise. Each case must be decided on its own facts in the exercise of the judicial discretion. In imposing the five year operational period, her Honour noted that it was made that long because there was ‘an overwhelming likelihood’ that the appellant would breach the order. Given that factual finding, in my respectful view, it was not appropriate to impose a wholly suspended sentence.

80. [80]
    It had the effect that for the next five years the appellant would be at risk of serving the whole of the suspended imprisonment of up to nine months. Of course, the mere possibility that he may be required to serve some or all of the suspended sentence would not of itself render the sentence excessive. But in light of the factual finding of his high risk of reoffending (with which I respectfully agree), in my view it was not appropriate to suspend the sentence.

81. [81]
    In my respectful view, an operational period of five years was disproportionate to the sentences imposed and the gravity of the offending. It was a longer operational period than would otherwise have been appropriate for the purposes of just punishment and resulted, in this case, in a sentence that was excessive.

82. [82]
    Although the appellant was remanded in custody at sentence, the learned Magistrate was not assisted by a presentence custody certificate nor any submissions about declaring presentence custody. Pursuant to s 159A of the PSA, the presentence custody was required to be declared unless the Magistrate ordered otherwise. The failure to expressly take into account or declare two days presentence custody as time served under the sentence was also an error.

Conclusion and orders

83. [83]
    It is appropriate to allow the appeal and vary the orders made by the learned Magistrate to order that on charges 2 and 3, the sentences of imprisonment are not disturbed but the appellant is given an immediate parole release date.

84. [84]
    On charge 1, the appellant has now served the three months’ term of imprisonment. In those circumstances, it is appropriate to set aside that order and in lieu thereof, order that the appellant is convicted and not further punished (the gravity of that offence being taken into account in the head sentence of nine months’ imprisonment).

85. [85]
    The presentence custody will be declared.

86. [86]
    The orders are:

1. Allow the appeal.

2. Vary the orders of the Magistrate on 9 November 2021 only by:

1. (a)
   setting aside the reference to the sentences being wholly suspended for an operational period of five years;

2. (b)
   on charges 2 and 3, ordering that the appellant be released on parole today, 8 April 2022;

3. (c)
   on charge 1, setting aside the sentence and convicting and imposing no further penalty.

3. Declare that the appellant was held for a total of two days of presentence custody between 6 November 2021 and 9 November 2021 inclusive and all of that time is taken to be imprisonment already served under the sentences.

4. Appellant is to report to probation and parole at Thursday Island by 4pm 11 April 2022.

5. No order as to costs.