R v Pacaci

The applicant pleaded guilty to drug possession offences. The sentencing judge found that the applicant had good prospects of rehabilitation and did not require supervision upon his release from custody, but sentenced the applicant to a head sentence involving a suspended component, the operational period of which was double the term of imprisonment. In considering whether the sentence was manifestly excessive, the Court of Appeal considered the principles relevant to suspended sentences and concluded that there ought to be an appropriate relationship between the sentence imposed on an offender and the suspended component. The Court held that in this case, that relationship was not appropriate such that the operational period was not proportionate, rendering the sentence manifestly excessive. The Court allowed the appeal, and substituted a shorter operational period.

Bowskill CJ, Bradley JA and Callaghan J

26 August 2025

Background

The applicant pleaded guilty to three drug possession offences arising out of a search of a shed that he rented, which contained cannabis plants that he was growing. The applicant was sentenced on count 1 to a head sentence of imprisonment for two years and six months which was suspended after six months for an operational period of five years. On the other charges, the applicant was sentenced to lesser suspended terms of imprisonment and lesser operational periods were imposed. [1], [7].

The applicant contended that the sentence on count 1 was manifestly excessive because the sentencing judge erred in imposing an operational period of five years for the suspended sentence.

Principles pertaining to suspended sentences

The Court considered the history of suspended sentences and described this sentencing option as being generally considered appropriate only where it appears to a sentencing judge that conditional release is not warranted, having regard to the circumstances of the particular offender. [22].

The Court also considered that s 144 Penalties and Sentences Act 1992, which provides for suspended sentences, confers three separate discretions which are all preconditioned upon the court sentencing an offender to imprisonment for five years or less:

(1)a discretion as to whether to order the term of imprisonment be suspended at all (ss 144(1) and (2));

(2)a discretion as to whether the whole or only part of the term of imprisonment should be suspended (s 144(3)); and

(3)a discretion as to the duration of the operational period of the suspension (s 144(5)). [23]–[26].

The Court also considered that the language of s 144 clearly confers a discretion on the court to suspend a term of imprisonment for longer than the term of imprisonment. Further, the Court held that because an order for imprisonment, as well as the order that the imprisonment be suspended, alongside the operational period, are captured by the meaning of “sentence” in the Act, it follows that the determination of the appropriate operational period is to be made by reference to the purposes of sentencing in s 9(1). The Court also considered that the requirement of proportionality extends to the term of imprisonment as well as the operational period. [28], [32]–[33], [42].

In tracing these principles, the Court endorsed as applicable to suspended sentences the statement of Gibbs CJ in Lowe v The Queen (1984) 154 CLR 606, 610 that “there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole”, with what is appropriate depending on the circumstances of each case and the relationship between those two periods falling for determination “in the exercise of a wide discretion”. [45]–[46].

Was the sentence manifestly excessive?

Despite the sentencing judge finding that the applicant had good prospects of rehabilitation, such that it was not appropriate to impose a sentence which involved supervision, the sentencing judge nevertheless imposed an operational period that was double the term of imprisonment imposed. The Court inferred that this was on the basis of personal deterrence and community protection. [50].

The Court found that the operational period breached the principle of proportionality. That was because in a case like the present, where the sentencing judge finds that the offender has good prospects of rehabilitation and does not require supervision following release from custody, deferring the conditional liability to serve the balance of the term of imprisonment for double the length of that term is not proportionate. [52]–[54].

Disposition

The Court held that the sentence was manifestly excessive because the duration of the operational period was plainly unjust or unreasonable, allowing the appeal and substituting an operational period of two and a half years. [55]–[56].

A Lukacs