Commissioner of Police v Toby[2025] QDC 22

DISTRICT COURT OF QUEENSLAND

Summary

1. [1]
   On 5 August 2024, the respondent defendant was convicted on his own plea of guilty in the Magistrates Court held in Cairns and sentenced to an effective 12 months imprisonment comprising concurrent sentences for 23 property-related offences committed between 20 December 2023 and 12 February 2024 and one offence of obstructing a police officer on 10 February 2024. 
2. [2]
   The head sentence was ordered to be served cumulatively upon a pre-existing incomplete sentence of 20 months imprisonment; 174 days of pre-sentence custody was declared as time served for all sentences, and a parole eligibility date was set at 4 August 2024.
3. [3]
   The appellant appeals his sentence on the grounds that it is manifestly inadequate in respect of the burglaries because:

1. The sentencing magistrate erred by double accounting for the 174 days of pre-sentence custody by making a declaration and also reducing the sentence;
2. The sentencing magistrate erred by placing excessive weight on the age of the defendant in reducing the sentence imposed.

4. [4]
   The appeal is conceded in respect of the treatment of the pre-sentence custody.  The respondent argues that the sentence was within the permissible range for concurrent sentences for the whole offending if no presentence custody was declared under the sentence.
5. [5]
   On my review at the hearing on 17 December 2024, I found that the sentence is inadequate generally or as a result of any error in the declaration of pre-sentence custody being applied without consideration of its application to cause the sentences to overlap, resulting in a period of concurrency, inconsistently with the order that the head sentence be served cumulatively upon a pre-existing incomplete sentence of 20 months imprisonment. 
6. [6]
   Accordingly, I allowed the appeal and ordered that the sentence and orders be varied by substituting 15 months in lieu of 12 months imprisonment for the most serious burglary offence and declared that no time in presentence custody is taken into account for the sentence.

Appeal

7. [7]
   The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). 
8. [8]
   Pursuant to s 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave if there are special grounds for giving leave. 
9. [9]
   The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.^[1]  Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.^[2]  In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.^[3]
10. [10]
    By operation of s 222(2)(c), the appellant can "only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate”, that is, “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness”.^[4]  To succeed, the appellant must establish some legal,  factual or discretionary error.^[5]  Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence.
11. [11]
    In the case of a specific error, the appellate court’s power to intervene is enlivened and it is dutybound to re-sentence unless, in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed.^[6]  By contrast, absent identifiable specific error, the appellate court ought only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.^[7]
12. [12]
    Even if the appellate court finds that the sentence was at the extreme end of a permissible range or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in an inadequate sentence.^[8]  In that context, it may be vitiated by an error of principle, or by a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.^[9]

Did the sentencing magistrate err by both, declaring all pre-sentence custody, and ameliorating the sentence?

13. [13]
    The sentence proceeded on an agreed statement of facts, backgrounded by the 20-year-old appellant’s criminal history, antecedents and early guilty pleas.  By the time of sentence, the defendant had spent 174 days of pre-sentence custody, that is between 13 February 2024 and 4 August 2024.
14. [14]
    The offending comprised 23 charges for property-related offences committed between 20 December 2023 and 12 February 2024 and one charge for the offence of obstructing a police officer committed on 10 February 2024, as follows:

15. [15]
    The appellant’s reoffending started on 20 December 2023, being about six weeks after his release on board ordered parole on 1 November 2023.  He was still serving a 20-month period of imprisonment which commenced on 2 August 2023 with a full-time expiry of 6 May 2025.
16. [16]
    During the course of his sentencing reasons, the learned magistrate highlighted the defendant’s youthful age, criminal history compared to the nature and serious of the offending, absence of parental guidance, time spent in pre-sentence custody and very early plea of guilty.  His Honour remarked:

“I’m going to take into account your pleas of guilty, son. Your young age – – –is – your young age is something that’s weighing very heavily on this sentence. If you were an adult, I’d certainly probably send you – I’d probably give you either the maximum sentence I could give you here is three years, or I’m not too sure I’d send you upstairs to get – I won’t say it. I’ll leave it. But I must say, your criminal history – I think I’ve sentenced you in the past. I’m not too sure. 

…

I must take into account your young age, which is something weighing heavily – very heavily, on this decision. Very heavily. And it is something I must pay attention to. And your sentence is, obviously – got to be ameliorated to reflect your young age. If I did not have to do that today, I can tell you right now, that I would be taking a different course of action.

… Your time in custody will be declared as 174 days, between the 13th of February ’24, the 4th of August ’24 …

Had I been sentencing you the first instance, you would have received a higher sentence in a range of two to two and a-half. For you, the sentence must be ameliorated to take into account your plea of guilty. …

I am satisfied that I must pay attention to the time you have outstanding under the Penalties and Sentences Act. And you are a young person. Your rehabilitation is something that speaks for its own accord. … Time served will be declared – and I declare that to be cumulative.  I have reduced it back … to take into account [your] pre-sentence custody. …

I fixed your parole eligibility date as of today.” 

17. [17]
    As a result, the learned magistrate sentenced the respondent as follows:

    1. For the offence of obstructing a police officer - convicted and not further punished.
    2. For each of the two offences of attempting to enter a dwelling with intent - nine months imprisonment.
    3. For each of the six offences of unlawful use of a motor vehicle - six months imprisonment.
    4. For each of the 15 offences of entering dwellings and premises with intent or committing indictable offences - 12 months imprisonment for each offence.
    5. All sentences of imprisonment were ordered to be served concurrently with each other, but each of the 12-month concurrent sentences for the offences entering dwellings and premises with intent or committing indictable offences were ordered to be served cumulatively upon the 20-month sentence imposed on 20 September 2023.
    6. 174 days of pre-sentence custody was declared for all sentences. 
    7. A parole eligibility date of 4 August 2024 was set. 
18. [18]
    This appeal drew sharp focus on matters of totality regarding the interaction of the pre-existing period of 20 months imprisonment, the amelioration of the head sentences of 12 months imprisonment, the effect of the declaration of 174 days of presentence custody, and the apparent inconsistency with the order for cumulative sentences.
19. [19]
    In Mill v The Queen,^[10] the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2^nd Edition, pp 56 to 57:

“The effect of the totality principle is to require a sentencer who has passed a series of offences, each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is, 'just and appropriate.'  The principle has been stated many times in various forms. 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total, just to see where it looks wrong.'; when cases of multiplicity of offences have come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces.  It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences?”

20. [20]
    In The Queen v Crofts^[11], the Court of Appeal said:

“Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved. When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose, and cumulative sentences are imposed for one or more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all.”

21. [21]
    The ambit of the totality principle has been extended as explained in The Queen v Beattie, ex parte Attorney-General (Qld)^[12] by Philip McMurdo J (as he then was) as follows:

“The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, ‘the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable’.”

22. [22]
    It is common ground that the defendant committed the subject offending after his parole eligibility and release by board ordered parole, and whilst, a cumulative sentence was not mandated, it was a matter within for the proper exercise of the sentencing discretion.  Nevertheless, s 160F of the Act requires that there only be one parole eligibility or release date and that date must relate to the offender’s period of imprisonment, as opposed to a particular term of imprisonment.  “Period of imprisonment” is the unbroken duration of imprisonment that an offender is to serve for two or more terms of imprisonment, whether to be served cumulatively or concurrently and includes the “term of imprisonment” a court is imposing at the time of sentence.  Even though the appellant was released after serving pre-sentence custody, this nevertheless forms part of the unbroken duration of the appellant’s imprisonment.
23. [23]
    When sentences are required to be served cumulatively, consideration of the aggregate of current sentences and the sentence to be imposed is a necessary precursor to the application of the totality principle to ensure there is an appropriate relativity between the whole criminality and the length of the sentences imposed.  In R v Margaritis; Ex parte Attorney-General (Qld),^[13] Muir JA explained:

1. “[12]
   The application of the totality principle does not require that there must invariably be some reduction in the accumulation of otherwise appropriate sentences to avoid the so called ‘crushing’ effect.  The appropriate course is to arrive at an appropriate sentence and then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality.”

24. [24]
    The order that the sentences of 12 months imprisonment be served cumulatively with the previous pre-existing 20-month period of imprisonment imposed on 20 September 2023, meant that, in accordance with s 156(1) of the Penalties and Sentences Act 1992 (Qld), those terms of 12 months imprisonment commenced after the expiry of the pre-existing sentence on 6 May 2025.  The aggregate of the sentences is 32 months, starting on 2 August 2023 and expiring on 6 May 2026. 
25. [25]
    Having perceived the impact of the aggregate of cumulative sentences, the learned magistrate also apparently applied some amelioration due to the perceived effect.  However, that was unnecessary in light of the declaration of pre-sentence custody, as Bowskill J (as her Honour then was) said in R v Whitely,^[14] said at [19] that:

“I observe that the fact that the Court can now declare time served in custody, under a previous sentence, as time served under the sentence imposed by the Court obviates the need to ameliorate, to quite the same extent, the otherwise appropriate head sentence. This has the positive consequence of not distorting the sentence imposed, the explanation for which may not be apparent without consideration of the sentencing remarks.”

26. [26]
    The result is that the declaration pursuant to s 159A, that 174 days of pre-sentence custody from 13 February 2024 to 4 August 2024, inclusive, be taken as time already served in respect of the sentence, cut across both the order for cumulative sentences and the earlier amelioration.  The practical consequence of the declaration of pre-sentence custody is that the intended overall period of imprisonment of 32 months was reduced by 190 days to just short of 26 months, which is an effective sentence of a mere 6 months imprisonment for a tranche of offending subject to the sentence.
27. [27]
    This was discussed in R v Braeckmans [2022] QCA 25 at paragraphs 30 and 31:

“Section 156A leaves the sentencing court with no discretion: in circumstances which engage the section, the sentencing court must impose a cumulative sentence. On the other hand, s 159A provides a discretion to the sentencing court.  Where s 159A is engaged, the sentencing court may declare the whole of the time on remand for the subject offence as time spent in custody in serving the sentence, or it may declare some or none of it as time served. Because s 159A does not mandate an allowance of pre-sentence custody, but instead leaves that to the sentencing court’s discretion, the two sections can be construed so that they give effect to harmonious goals. The discretionary power under s 159A is an element of the court’s sentencing power, so that it must be exercised consistently with the requirements of the Act, including the specific requirement of s 156A.  Neither the terms of s 159A nor the explanatory note provide any indication of an intention that the amendment to s 159A was to allow sentencing courts to qualify the mandatory terms of s 156A.

Consequently, in a case such as the present one, a sentencing judge must exercise the power under s 159A to avoid the consequence that a cumulative term of imprisonment will become in part a concurrent term.  A declaration of pre-sentence custody in the prisoner’s favour should not have been made in the present case. Instead it should have been declared, pursuant to s 159A(3B)(c), that no time is taken to be imprisonment already served.”

28. [28]
    In my view, Braeckmans also applied to a discretionary cumulative sentence made under s 156 of the Act.  In R v DAB [2022] QCA 268 at [18] and [19], it was said:

“Mr Cook of counsel for the [Crown] endeavoured to persuade the Court that the reasoning in Braeckmans applies whenever the proposed sentence is cumulative, whether it is imposed as a mandatory cumulative sentence pursuant to s 156A or a discretionary cumulative sentence pursuant to s 156 of the PSA.  The answer to this submission is found in the policy reasons identified in Braeckmans for giving s 156A priority over s 159A by requiring the sentencing judge to refuse to make a declaration of presentence custody in respect of a mandatory cumulative sentence that would otherwise have had the effect of bringing forward the commencement date of the cumulative sentence, so that it started before the end of the period of imprisonment on which the sentence would be cumulative.  The policy reason for not making the declaration in those circumstances is that it defeats the punitive aspect of the mandatory cumulative sentence imposed under s 156A of the PSA.  That imperative position does not apply to a cumulative sentence imposed in the exercise of the sentencing court’s discretion under s 156 of the PSA and effect can be given to the purposes of both s 156 and s 159A of the PSA by imposing a sentence which has a partly cumulative effect.

In the [DAB’s] case, where there was not any statutory provision which mandated a wholly cumulative sentence, the sentencing judge was obliged to consider whether a declaration under s 159A(3) or s 159A(3B) should be made and, if the latter, what, if any, time should be declared.  The sentencing judge’s misapprehension as to the effect of the decision in Braeckmans caused the sentencing discretion to miscarry because the sentencing judge failed to consider whether or not to declare some part of the 477 days as time served.  It was therefore necessary for this Court to resentence the applicant, unless, independently we came to the same conclusion about the appropriate sentence as the primary judge.”

29. [29]
    It seems to me that the learned sentence magistrate’s discretion miscarried in having misconceived the effect of the declaration of pre-sentence custody upon the order of cumulative sentences, having also ameliorated the sentences in the circumstances.
30. [30]
    Both the appellant and respondent properly conceded that the learned magistrate erred in making a pre-sentence declaration on the term of imprisonment that was made cumulative.  And, it seems to me that this has resulted in an inadequate sentence, which is also demonstrated by the most closely comparable cases. 
31. [31]
    The parties have referred the court to the comparative cases of R v Dance [2009] QCA 371, R v Hazelgrove [2013] QCA 243, R v Karbanowicz [2003] QCA 543, and R v Bryant (2007) 173 A Crim R 88 citing R v MJ Taylor [2007] QCA 214.
32. [32]
    In Dance, the 17- to 18-year-old appellant committed 19 property offences whilst subject to a two-year probation order for unlawful use of motor vehicle offences. He was sentenced to 18 months imprisonment with a parole release after serving approximately four months.  On appeal, the parole release was changed to the date of the decision (immediately). The offending involved a higher quantum of items taken and a driving offence that was not present in the respondent’s case.  Dance was younger with less criminal history compared to the offender on this appeal.
33. [33]
    In Hazelgrove, the Court of Appeal upheld sentences of three and a half years for each of three offences of breaking and entering and stealing, committed while the appellant was on parole. At the time of sentencing, the appellant was older at 29 years old and had an extensive criminal history. The stolen property was valued at approximately $10,000.  The offender caused $2,500 worth of damage when breaking into a premises.  Muir JA, considered the appeal in R v Vaughan [2005] QCA 348, which involved a 25-year-old offender with prior convictions, including periods of incarceration, saying at [8]:

“Keane JA, with whose reasons Cullinane J agreed, observed that, having regard to the offender’s appalling criminal history and the need for deterrence, the head sentence of three years could not be said to be excessive. His Honour noted that in R v Donald de Jersey CJ commented that “a three-year term for breaking and entering a dwelling house was “at least mid-range … and arguably low range” when the offender has a substantial criminal record”.

34. [34]
    Hazelgrove was older than the defendant here with an extensive criminal history. 
35. [35]
    In Karbanowicz, the Court of Appeal upheld a head sentence of four years for 14 offences of burgry and stealing, committed while the appellant was on probation. At the time of sentencing, the appellant was 21 years old and had a prior criminal history but had never previously been imprisoned. The offences resulted in higher value of approximately $60,000 worth of property being stolen or damaged.  Karbanowicz was described as a heroin addict who was stealing to support his addiction by stealing cash and saleable items.
36. [36]
    In Bryant, the Court of Appeal reduced the head sentence from five years to four years for nine offences, including breaking and entering while on bail and probation. The appellant was older at 35 years old at sentencing and had an extensive criminal history. The total loss resulting from the offences was approximately $6,500.  Jerrard JA reviewed several authorities concerning the sentencing range, including Karbanowicz. In response to the appellant’s submissions referencing various precedents, his Honour observed at [11]:

“Those decisions support shorter periods of imprisonment for those who are young, with little history, who commit a series of property offences, particularly when on bail, followed usually by supervision in the community.  …

Those particular decisions generally support sentences in the order of four to four and a half years imprisonment, with a significant degree of suspension before the mid-point of that sentence, for offenders with prior criminal histories engaged in recidivist theft causing loss in the order suggested by Mr Moynihan SC. (i.e. for mature offenders where the loss in property exceeds $20,000).”

37. [37]
    In MJ Taylor, the Court of Appeal reduced the head sentence from three years to two years for 22 property-related offences, including breaking and entering. Twelve of these offences were committed while the appellant was on bail for the initial ten offences. Additionally, the appellant committed the offences in the company of a juvenile co-offender. The total value of the stolen or damaged property was $9,119.  Jerrard JA, at [4], observed that the primary judge expressly took into account the appellant’s youth and generally limited criminal history, the plea guilty and his cooperation with the police, including as a sign of remorse of volunteering his involvement in most of the offences.  In reducing the sentence from 3 years to 2 years imprisonment.  Taylor had limited relevant criminal history but was classed as a recidivist property offender. 2 years imprisonment was considered appropriate to reflect the plea of guilty, efforts after arrest and since bail, and the need for personal and general deterrence.
38. [38]
    Whilst analysis of closely comparable cases often provides valuable guidance, those proffered, here and below, have relative comparative value depending on their age, offender’s idiosyncratic antecedents, criminal history, nature and seriousness of the offending involving differing aggravating features, prevalence, and applicable maximum penalties at the times they were decided.  They must be considered in the context of the different combination, nature and seriousness of the offending compared to the appellant’s offending involving domestic violence offending, serious assault of police and obstructing police.  Ultimately, the appropriate sentence will necessarily depend on the particular circumstances of the offending and the degree of culpability of the offender.  It is instructive to look at the appellant’s particular circumstances and the combination of offences in this case.  His offending occurs against a background of a violent history, domestic violence and disobedience.  The gravamen of his re-offending, which started only six weeks after his release on board, ordered parole on 1 November 2023 while still serving a 20-month period of imprisonment, which included the more serious offences of entering dwellings and premises with intent or committing indictable offences.  Matters of personal and general deterrence are particularly relevant here.  Nevertheless, the court must also look at the totality of the appellant’s criminal behaviour and ask itself what is the appropriate sentence for all the offences, was it just and appropriate pursuant to s 9 of the Act.
39. [39]
    In the circumstances of this case, it seems to me that the whole period of imprisonment, having regard to the pre-existing sentence, should be in the order of 35 months.
40. [40]
    For these reasons, in my respectful view, the sentencing magistrate erred in exercising the sentencing discretion by acting upon a wrong principle as to the effect of the declaration of pre-sentence custody upon the order of cumulative sentences, having also ameliorated the sentences in the circumstances.  And in the result, the learned magistrate imposed an inadequate sentence outside the permissible range in the circumstances of the case.
41. [41]
    Since I have also found that the resultant sentence is inadequate, it is unnecessam to further consider the second ground of appeal as to whether the sentencing magistrate erred by placing excessive weight on the defendant’s age to further reduce the sentence.

Resentence

42. [42]
    Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion. 
43. [43]
    The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community.  The relevant factors to which the court must have regard are in the subsequent subsections of s 9 of the Penalties and Sentences Act 1992 (Qld).
44. [44]
    It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender.  The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so.  The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence.  For this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
45. [45]
    Accordingly, I allowed the appeal and ordered that the sentence and orders be varied by substituting 15 months in lieu of 12 months imprisonment for the most serious burglary offence, and declared that no time in presentence custody is taken into account for the sentence.
46. [46]
    In reaching those sentences, I have had regard to the conduct of the defendant in the offending, the roles that he played in it, how the offences otherwise overlap arising from the same conduct, as well as the degree of cooperation constituting each of the offences, and the sparsity of facts upon which the Court was expected to pass sentence.  Having reviewed and considered the aggregate of the appropriate sentences, I think it is just and appropriate and too crushing or disproportionate that the sentences of imprisonment be served concurrently. 
47. [47]
    I make no change to the parole eligibility date of 4 August 2024 in view of the defendant’s plea of guilty, level of cooperation with the police and prosecution, his criminal history and like offending, the time that he has spent in custody before the sentence and pending this appeal, as well as his various roles in the offending and his cooperation bringing about the charges.  Further, I take into account his age.

Order

48. [48]
    For these reasons, I affirm the orders made on 17 December 2024:

1. Appeal allowed.

2. The sentence and orders of the Magistrates Court made in the Magistrates Court in Cairns on 5 August 2024 are varied as follows:

1. a)
   Substituting 15 months in lieu of 12 months imprisonment for the most serious burglary offence being charge 24 in Bench Charge Sheet No. 2400644414.

3. Substituting the declaration that none of the 174 days of pre-sentence custody between 13 February 2024 and 4 August 2024 inclusive are served under the sentence and directing the registrar to inform the commission of this declaration.

Judge DP Morzone KC