Commissioner of Police v Robertson [2025] QDC 192

s 9 Penalties and Sentences Act 1995 (QLD) ("PSA")

Pavlovic v Commissioner of Police [2006] QCA 134; [2007] 1 Qd R 344

Nicholson v GCMR Project Services Pty Ltd [2025] QCA 242

Young v White [2016] QDC 159

Commissioner of Police v Watmough [2015] QDC 46

R v Palmer; Ex parte Attorney-General (Qld) [2019] QCA 133

R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116

House v The King (1936) 56 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Ayling v Commissioner of Police [2017] QDC 42

Gatti v Pogan [2012] QDC 231

R v Dodd (1991) 57 A Crim R 349

R v Aston (No 2) [1991] 1 Qd R 375

Lynch v Dixon [2004] NTSC 45

Hales v Garbe [2000] NTSC 49

Crook v Roberts (1990) 53 SASR 236

Mick v Borgoyne [2006] NTSC 5

Brown v Lusted (2015) 255 A Crim R 192

Barrett v Wilson [2015] TASSC 3; (2015) 69 MVR 333

Police v Nissen (2014) 120 SASR 50

Coombe v Douris (1987) 47 SASR 324

Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150

Harman v Queensland Police Service [2018] QDC 146

Jocumsen v Olive [2013] QDC 264

Spizzirri v Commissioner of Police [2015] QDC 222

R v Serbanoiu [2007] QCA 257

R v Harris [2008] QCA 141

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Bartley v Macerlich [2014] QDC 114

Queensland Police Service v Gregory [2010] QDC 388

R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

R v Waters; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 131

Queensland Police Service Legal Services for the appellant

Aboriginal and Torres Strait Islander Legal Service for the respondent

[1] On 22 April 2025 the respondent pleaded guilty in the Palm Island Magistrates Court to one charge of driving a motor vehicle without a driver licence disqualified by court order contrary to s 78(1) and (3)(a) Transport Operations (Road Use Management) Act 1995 (Qld) ("TORUM"). On the same day the respondent was sentenced to 15 months imprisonment with his parole release dated fixed immediately and disqualified from holding or obtaining a driver licence for two years.

[2] The Commissioner of Police appeals that sentence alleging manifest inadequacy. The appeal is confined to the respondent not being ordered to serve an actual period of imprisonment. There is no challenge to the period of disqualification.

[3] The appeal is brought pursuant to s 222 Justices Act 1886 (Qld) ("JA"). Section 225 empowers a judge to confirm, set aside or vary an appealed order, or make any other order considered just. Section 223 JA provides that an appeal under s 222 is by way of rehearing on the original evidence on the record unless leave is granted to adduce new evidence where the court is satisfied there are special grounds for giving leave. Whilst the JA does not prescribe the manner in which the discretion to grant leave to adduce new evidence under s 223 is to be exercised, it was explained in Pavlovic v Commissioner of Police[1] that the reference in s 223(2) JA to "special grounds" indicates that there must be good reason identified to justify a departure from the application of the rule in s 223(1) that an appeal is "by way of rehearing on the evidence given in the proceeding before the justices".

[4] Because this is a prosecution appeal alleging inadequacy of sentence, the approach of the Court of Appeal to the hearing of an appeal against sentence by the Attorney-General would appear to equally apply, such that principles of moderation and double jeopardy are applicable.[2] Accordingly, the burden is upon the appellant to show error and also persuade the court to exercise the discretion to impose a more severe sentence.[3] The question in such appeals is whether the sentence involved error of a kind warranting interference with a discretionary judgment, the finding of error being a necessary condition for exercising the discretion.[4] Unless some material error of fact or law can be identified in the sentencing court's reasoning then the question is whether, by reason of the extreme leniency of the sentence, an error of principle can be inferred[5] in accordance with the principles explained in House v The King.[6] Intervention will only be warranted when the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle.[7]

[5] For purposes of s 222 JA, a sentence will be inadequate only if it is "unreasonable and plainly unjust".[8] Appellate intervention is not justified simply because the sentence imposed is markedly different from other comparable decisions.[9] It is only where an appellate court is satisfied that the sentence imposed is definitely outside the appropriate range that the exercise of the discretion to re-sentence is justified.[10] A conclusion that a sentence is unreasonable and plainly unjust will not be made simply because the appellate court, had it been in the position of the sentencing court, would have exercised its discretion in a manner different from the manner in which the sentencing court exercised its discretion.[11]

[6] At about 6.30pm on 16 March 2025 when police were conducting patrols on Clump Point Road, Palm Island, they intercepted a vehicle being driven by the respondent to conduct a licence check and roadside breath test. A licence check revealed that the respondent's licence had been disqualified by court order. The respondent told police that he knew he should not have been driving and was only doing a favour for a family member by changing a tyre on the vehicle.

[7] The respondent was born on 25 February 1986. He was aged 39 at the time of committing the offence and at sentence. He had a 7 page criminal history which largely consisted of breach of bail offences but also included some offences of violence and most relevantly a conviction in 2011 for failing to stop for which he was sentenced to one month imprisonment, a conviction in 2013 for failing to stop for which he was sentenced to 3 months imprisonment and a conviction in 2022 for an evasion offence for which he was sentenced to 50 days imprisonment.

[8] More relevant however is the respondent's traffic history. At the time of being sentenced by the Magistrate the respondent had since 2005 accumulated 26 offences of disqualified driving comprising one offence in 2005, nine offences in 2006, one offence in 2007, three offences in 2010, three offences in 2012, one offence in 2014, one offence in 2018, five offences in 2021, one offence in 2022 and one offence in 2023. In addition, between 2004 and 2020 the respondent committed 16 offences of unlicenced driving and one offence of driving under the influence of liquor (.174 BAC) committed whilst disqualified.

[9] In terms of punishments, for his disqualified driving offending the respondent has been sentenced to orders of probation, recognisance release orders and periods of imprisonment suspended or subject to parole release either immediately or with an actual custodial component. The respondent's traffic history for the 10 years prior to sentence included the following entries:

[10] The prosecutor described the respondent's traffic history as "possibly the worst traffic history" he had seen. The prosecutor highlighted the respondent's 26 prior convictions for disqualified driving which on the last occasion he was dealt with for an offence of disqualified driving he was sentenced to 18 months imprisonment which was the maximum for the offence. The respondent's traffic history was relevant to sentence pursuant to s 78(2) TORUM. It was submitted relying upon comparable sentencing decisions as a yardstick that a sentence of 15 months imprisonment with parole release after 5 months would be appropriate.

[11] When the matter was first called on the defendant's solicitor conceded that a term of actual imprisonment was inevitable. It was emphasised that the respondent was being sentenced for a single offence of disqualified driving unaccompanied by other aggravating offending such as dangerous operation of a motor vehicle, nor was it being suggested that the respondent was an unsafe driver or someone unfit to drive, his driving occurring in circumstances where he was rendering assistance to a family member to change a tyre on a vehicle. It was conceded that a head sentence of 15 months was appropriate but that the respondent was "very much in a corner" given that his most recent convictions for disqualified driving had resulted in sentences involving actual imprisonment.

[12] The Magistrate noted that the charge carried a maximum penalty of 18 months imprisonment, that the respondent had a 7 page criminal history and a 16 page traffic history which included 26 prior convictions for disqualified driving and 16 prior convictions for unlicenced driving. The Magistrate noted that sentences imposed upon the respondent had increased in severity and that for his last disqualified driving offending he was sentenced to the maximum of 18 months imprisonment with actual time to serve which had not deterred the respondent from continuing to drive and noted that general deterrence was an important sentencing consideration in sentencing the respondent. The Magistrate referred to two comparable sentencing decisions, Ayling v Commissioner of Police [2017] QDC 42 and Gatti v Pogan [2012] QDC 231 as providing a sentencing yardstick and expressed the view that the respondent's traffic history reflected that he had an issue with driving whilst disqualified rather than driving in a way that was dangerous to the public, the respondent having accrued no prior convictions for dangerous operation of a motor vehicle or unlawfully using a motor vehicle. The Magistrate noted there to be a gap of approximately two years between the respondent's disqualified driving offences dealt with in 2023 and his current offending.

[13] The respondent had pleaded guilty to the offence. The Magistrate noted that the respondent's uncle had recently passed away and that were he to be sentenced to a term of actual imprisonment he would be deprived from participating in sorry business. The offending occurred in circumstances where the respondent was assisting a family member. Ultimately, the Magistrate was persuaded that a sentence not involving actual imprisonment was appropriate in the circumstances and imposed a sentence of 15 months imprisonment with immediate release on parole.

Principles relevant to sentencing for the offence of disqualified driving

[14] Section 78(1) TORUM creates the offence of disqualified driving. In addition to the sentencing principles contained in s 9 Penalties and Sentences Act 1995 (QLD) ("PSA"), s 78(2) TORUM also mandates a number of sentencing principles specifically applying to an offence of disqualified driving:

"78 Driving of motor vehicle without a driver licence prohibited

(2) If a person commits an offence against subsection (1) when the person is a disqualified driver, or is a repeat unlicensed driver for the offence, the court, in deciding what penalty to impose on the person, must consider -

(a) all the circumstances of the case, including circumstances of aggravation or mitigation; and

(c) the person's criminal history and traffic history; and

(d) any information before it relating to the person's medical history, or the person's mental or physical capacity, that the court considers relevant; and

(e) whether the offence was committed in association with the commission or attempted commission of another offence and, if so, the nature of the other offence; and

(f) any other matters that the court considers relevant."

[15] The purposes for which a sentence may be imposed on an offender are prescribed in s 9(1) PSA. Those purposes include punishing an offender to an extent or in a way that is just in all the circumstances (s 9(1)(a)), to provide conditions that will help an offender rehabilitate (s 9(1)(b)) and to deter an offender or other persons from committing the same or similar offence (s 9(1)(c)). Section 9(2)(a) PSA which requires a court to have regard to principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable also apply to an offence of disqualified driving.

[16] An immutable principle of sentencing is that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be reasonable proportionality between the sentence imposed and the circumstances of the offending. That principle is enshrined under common law[12] and now finds statutory expression under s 9(11) PSA that the sentence imposed must not be disproportionate to the gravity of the offence. Deterrence, both general and personal, is and remains an important sentencing consideration, s 9(1)(c) PSA giving statutory recognition to the common law principles of general and specific deterrence.

[17] Section 78(2)(c) TORUM expressly provides that in deciding what penalty to impose for an offence of disqualified driving an offender's criminal and traffic history must be considered. Section 9(10) PSA requires a court in determining the appropriate sentence for an offender to treat an offender's previous convictions as an aggravating factor having regard to the nature and relevance of the previous convictions and the time that has elapsed since the previous convictions. Where, as here, an offender has prior convictions for similar offending and manifests a continuing attitude of offending greater weight ought to be given to specific or personal deterrence and protection of the community.[13]

[18] The principle of proportionality where an offender has a prior relevant criminal or traffic history was explained by Cooper J in R v Aston (No 2):[14]

"The majority judgment in Veen [No 2] makes clear that the principle of proportionality (that the sentence should be proportionate to the gravity of the offence) applies in Australia. Additionally a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender or to act as a deterrent to others who might contemplate committing the same offence to the protection of society as one of the factors amongst others in the exercise of the sentencing discretion.

Relevantly for the purposes of the present application, the majority in Veen [No.2] dealt with the use which could be made of an offender's previous criminal history. At 477-478 of the report their Honours said:

'... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.'" (citations omitted)

[19] All Australian jurisdictions make it an offence to drive whilst disqualified by a court order. Whilst the maximum penalties vary, the approach to sentence in other Australian states and territories mirror the approach in Queensland where general deterrence assumes particular importance. The justification for imposing condign sentences upon those who drive whilst disqualified has repeatedly been said to reflect that engaging in such conduct is contemptuous of a court order. The gravamen of the offence has been described as an offender's "contumacious" contravention of an order of the court,[15] but other epithets are commonly applied including "disobedience",[16] "defiance"[17] and "a flagrant disregard"[18] of the court and the law.

[20] In Brown v Lusted[19] Pearce J said with respect to the offence of disqualified driving:

"[19] It is important also that the court not lose sight of the overall criminality involved in his offending. To drive at all involved considerable criminality. In Barrett[20] at [11], I explained the seriousness of driving while disqualified by virtue of a court order, especially by offenders with a history of similar offending. There is no need to repeat those comments here. By driving while disqualified the applicant continued to display the same contempt for court orders that he not drive which he has shown throughout his adult life. Increasingly heavy sentences and the prospect of breaching his parole did not deter him. ... He was not to be punished for his record, but given so many prior convictions for disqualified driving and dangerous driving, there could hardly be a stronger demonstration of the need for specific deterrence and protection of the public. He presents as a risk to society."

[21] In Police v Nissen[21], Kourakis CJ also observed with respect to the offence:

"[20] ... general deterrence will always have an important part to play in sentencing for offences of this kind. The sentences of disqualification and suspension imposed on traffic offenders are critically important in ensuring obedience to the rules of the road and thereby the safety of the public. Persons subject to disqualification orders should be left in no doubt about the serious consequences of disregarding them whether they do so occasionally, frequently or totally. Plainly enough, in a case of "total disregard" of the order, it would require a particularly powerful combination of mitigatory circumstances to support a sentence other than imprisonment but even lesser degrees of contumacy must be strongly discouraged.

[26] The financial and human cost of personal injury and property damage caused by traffic offences weighs heavily on the community. The most effective measures for deterring serious and persistent traffic offenders and thereby protecting the public are licence disqualifications and suspensions. As King CJ observed in Coombe v Douris[22], those orders are ineffective if they are generally disregarded. Driving in contravention of a licence disqualification or suspension is difficult to detect and, for that reason, it is critical that when an offender is apprehended the disqualification and suspension orders are strongly enforced.

[27] The feature of an offence of driving while disqualified from holding a licence, or while a licence is suspended, which most emphasises the need for general deterrence is a dismissive attitude to the disqualification or suspension order which places little importance on compliance with it. Contumaciousness is an extreme example of the attitude to which I refer. When an offence of driving under disqualification, or driving while holding a suspended licence, manifests a dismissive attitude to the order, general deterrence will demand relatively greater weight than the offender's personal circumstances.

[28] The measure of an offender's attitude to the importance of the order will generally be found in the strength of his or her reason for breaching it. As the judgments in Cadd[23] make clear, reasons falling short of duress and medical emergency suggest that little importance was placed on the order. Moreover, the reasons in Cadd show that, speaking generally, loss of employment, financial loss and domestic reasons are weak excuses for a breach."

[22] The importance of general deterrence emphasised by Kourakis CJ when sentencing for an offence of disqualified driving is consistent with the approach adopted by decisions of this court especially where an offender is a recidivist disqualified driver.[24] Other appellate court decisions have expressed the view that repeat disqualified driving offending demonstrates a "flagrant disregard for the law"[25] and a "total disregard for traffic laws"[26] and that those who continue to drive whilst disqualified will be exposed to significant sentences of imprisonment.[27]

[23] The appellant's sole ground of appeal is that the sentence imposed is inadequate. The head sentence of 15 months imprisonment is not challenged, the appellant arguing only that in the circumstances, particularly having regard to the respondent's traffic history, principles of general and personal deterrence can only be met by a sentence of actual imprisonment. The sentence imposed afforded too much weight to the appellant's mitigating factors and insufficient weight to general and personal deterrence rendering the sentence inadequate.

[24] The respondent argues that the Magistrate considered all matters relevant to sentencing including the respondent's traffic history. The Magistrate emphasised that general and personal deterrence were important sentencing considerations and the appellant has not demonstrated any error by the Magistrate in the exercise of her sentencing discretion. The sentence of 15 months imprisonment imposed reflected the gravity of the respondent's offending and the order that the respondent be released immediately on parole fell within the sound exercise of the Magistrate's sentencing discretion and does not demonstrate error.

[25] It is helpful to traverse the comparable sentencing decisions which were referred to at first instance and on this appeal noting that comparable sentences assist in promoting consistency in the application of the principles of sentencing as they provide guidance to the sentencing court and stand "as a yardstick against which to examine a proposed sentence."[28] In Ayling v Commission of Police[29] the appellant pleaded guilty to one charge of disqualified driving and one charge of failing to appear. The appellant was intercepted at about 8pm for the purpose of conducting a random breath test having come from a tavern where he had placed a few bets. He admitted to police that he was disqualified from driving. The appellant was aged 47 at the time of offending and was burdened by an extensive criminal and traffic history which included 10 prior convictions for disqualified driving and 10 prior convictions for unlicenced driving committed between 1996 and 2014. His criminal history included dated prior convictions for unlawfully using a motor vehicle. The appellant had served considerable periods of imprisonment. In respect to his disqualified driving offences the appellant had been sentenced by way of fines and periods of imprisonment. Noting that general deterrence was a primary factor in sentencing, the sentence of 15 months imprisonment with release on parole after serving 6 months imposed in respect to the disqualified driving offence was found not to be excessive.

[26] In Gatti v Pogan[30] the appellant pleaded guilty to a number of offences including an offence of disqualified driving and an offence of driving under the influence of liquor. At approximately 12.20 am the police observed the appellant getting out of a vehicle pulled over on the side of the road. They approached the appellant and detected the smell of liquor on him and he later returned a BAC of .173. The appellant was 44 years of age. He had what was described as "an absolutely shocking traffic history". Since 1982 the appellant had committed 20 disqualified driving offences and 10 drink driving offences. He had been sentenced in 2005 to three years imprisonment for an offence of dangerous driving. At first instance the appellant was sentenced with respect to the disqualified driving offence to 18 months imprisonment with parole release set after 9 months. The appeal was allowed on the basis that the Magistrate had failed to take into account the appellant's plea of guilty and the appellant was resentenced to 15 months imprisonment with parole release after serving 5 months.

[27] In Harman v Queensland Police Service[31] the appellant pleaded guilty to a number of offences including two offences of disqualified driving and an offence of driving whilst a relevant drug was present in saliva. The appellant had been sentenced for an offence of driving with a relevant drug in his saliva and was disqualified from driving for 1 month. Afterwards the appellant drove his car away and was intercepted by police. He was found to have methylamphetamine in his system. A number of weeks later he was again caught driving whilst disqualified. The appellant was aged 28. His traffic history included 6 prior convictions for disqualified driving committed over a 12 year period as well as 6 prior convictions for driving unlicenced, 2 prior convictions for dangerous operation of a motor vehicle and 1 prior conviction for drink driving. Most of those offences were dated having been committed in 2008 when the appellant was aged 18. The appellant also had a criminal history which included an offence of robbery for which he was sentenced to 3 years imprisonment and an offence of grievous bodily harm for which he was sentenced to 4 years imprisonment. The sentence of 12 months imprisonment with parole fixed after 3 months was found not to be excessive and the appellant's appeal was dismissed.

[28] In R v Spizzirri[32] the appellant was intercepted by police on 12 October 2014 when driving a motor vehicle and found to be disqualified from driving. As a result the appellant was charged with an offence of disqualified driving which he pleaded guilty and was sentenced on 18 March 2015. The appellant had what was described as an "appalling traffic history" which included 21 prior convictions for disqualified driving dating back to 2004 and had been sentenced to periods of imprisonment. His most recent offending which he had been sentenced for on 2 May 2013 involved 8 offences of disqualified driving committed between February and March 2013 which he was sentenced to 17 months imprisonment with parole release after 5 months. The appellant had a significant criminal history which included drug offending for which he was sentenced on 12 December 2014 in the Supreme Court to a partly suspended 18 month period of imprisonment. The appellant offended 4 days after his release from custody in respect to the Supreme Court sentence. On appeal, the appellant's sentence of 12 months imprisonment with parole release after 4 months was set aside and a sentence of 12 months imprisonment wholly suspended substituted. Relevant to that outcome was the appellant's demonstrated rehabilitation which featured in his Supreme Court sentence and which it was found the Magistrate had failed to afford adequate weight when sentencing the appellant.

[29] In Bartley v Macerlich[33] the appellant pleaded guilty to one offence of driving a motor vehicle whilst disqualified. The appellant was intercepted by police when driving his motor vehicle. He told police that he did not have a current driver licence. Police checks revealed he was the subject of a court disqualification. The appellant was aged 24 at the time of sentence. He was in full-time employment with the mines, was in a long term relationship, had a 5 month old son and was the primary breadwinner for the family. The appellant had a relevant traffic history which included three prior convictions for disqualified driving for which he had been sentenced to 12 months probation for the first, 9 months imprisonment to be served by way of an intensive corrections order for the second and 12 months imprisonment with immediate parole for the last. The sentence of 12 months imprisonment with parole release fixed after the appellant had served 3 months imposed by the Magistrate was found not to be excessive.

[30] Finally, in Queensland Police Service v Gregory[34] the respondent pleaded guilty to one offence of driving a vehicle whilst disqualified. He was sentenced to 6 months imprisonment with immediate parole. The Queensland Police Service appealed the inadequacy of the sentence. The respondent was observed by police driving a motor vehicle along a road in Doomadgee. Police spoke to the respondent who admitted to being disqualified from driving by a court order. He explained his reason for driving was so he could buy some ice cream for his children who were crying. The respondent was aged 40 at sentence, had been married for 20 years and had 10 children. He had an extensive traffic history which between 1992 and 2008 included 5 unlicensed driving offences, 6 disqualified driving offences and 7 driving under the influence of liquor offences. He had committed 4 of the disqualified driving offences in the preceding 5 years. The respondent had been sentenced to community-based orders as well as periods of imprisonment with and without actual time to serve. Irwin DCJ, although dismissing the appeal, concluded that but for the delay in prosecuting the appeal which engaged the exercise of the residual discretion not to interfere with the sentence, he would have varied the sentence by fixing the parole release date after the respondent had served 2 months actual imprisonment, explaining at pp. 12-13:

"In the circumstances of this case, I consider that the appellant's continuing attitude of disobedience to the law in driving whilst disqualified or unlicensed is such that the principles of specific and general deterrence indicated that a more severe penalty was warranted.

This is particularly so in the present case which indicated the respondent's continuing attitude of disobedience to the law, notwithstanding that he had been sentenced to four months actual imprisonment for two disqualified driving offences associated in each case with high level driving under the influence offences 19 months previously. On this occasion, he deliberately drove the motor vehicle despite knowing he did not have a current licence and remained disqualified from driving by the Court's order in relation to those earlier offences. Notwithstanding this, he took the risk of breaking the law knowing the potential consequences. This showed a need to impose condign punishment to deter him and other offenders, particularly in communities such as Doomadgee, from committing further offences of a like kind. Although a penalty cannot be imposed which is disproportionate to the gravity of the singular offence of which he was convicted on this occasion, to punish him to a lesser extent than on the previous occasion when an actual term of imprisonment was imposed is not to impose condign punishment to deter him and other offenders."

[31] Having regard to the comparable sentencing decisions summarised, those comparable decisions demonstrate in my view that the sentence imposed on the respondent was inadequate even allowing for his plea of guilty and that his offending was not committed in conjunction with other serious offending such as driving under the influence or dangerous operation of a motor vehicle. The respondent was a mature offender who was burdened by an appalling traffic history which included 26 prior offences of disqualified driving and 16 prior offences of unlicenced driving accumulated over the preceding 20 years. He was therefore by any yardstick a serious and persistent traffic offender who had not been deterred from driving a motor vehicle disqualified despite being sentenced to terms of actual imprisonment for his most recent similar offending. While it was not permissible to impose upon the respondent a sentence disproportionate to the gravity of his offending because of his prior traffic history, nevertheless his prior convictions for similar offending meant that both general and personal deterrence assumed greater weight and warranted a more severe penalty being imposed than a sentence not involving actual imprisonment if the purposes of sentencing prescribed in s 9(1) PSA were to be met.

[32] The respondent was being sentenced for his twenty-seventh disqualified driving offence committed in 20 years. When sentenced 21 months earlier for 3 disqualified driving offences the respondent was sentenced to the maximum period of imprisonment available for the offence and was required to serve 132 days actual imprisonment. Whilst the respondent's offending was committed 21 months after he was last sentenced for an offence of disqualified driving, a feature the Magistrate placed particular reliance on, that period between offending had to be considered in the context of the respondent's long history of continuing to drive whilst disqualified, his traffic history demonstrating continued contumacious contraventions of a court order. The respondent made the deliberate choice to drive whilst disqualified in circumstances which displayed a total disregard for a court order rendering his offending serious.

[33] Sentences imposed on the respondent for his prior disqualified driving offending would have made it clear to him the potential consequences for him were he to be caught driving disqualified again. Given his 26 prior convictions for disqualified driving, the application of principles of general and personal deterrence, the protection of the community and the need to ensure that the sentence imposed was just in all the circumstances, a sentence of actual imprisonment was in my view both warranted and necessary to meet those considerations. In my view, the Magistrate failed to give appropriate weight to the respondent's long history of disqualified driving which increased the gravity of the offence. In circumstances where prior sentences of actual imprisonment had not deterred him from driving disqualified, although being sentenced for a single offence of disqualified driving, a sentence of actual imprisonment was required.

[34] Whilst no material error in fact or law can be identified in the Magistrate's reasoning, an error of principle can in my view be inferred by the extreme leniency of the sentence imposed. As principles of general and personal deterrence warranted a sentence involving actual imprisonment, I am satisfied that the sentence imposed by the Magistrate which did not involve a period of actual imprisonment was unduly lenient and fell outside the sound exercise of the Magistrate's sentencing discretion and that the sentence imposed was in the circumstances inadequate.

[35] The appellant's success in demonstrating that the sentence was inadequate does not however mean that the appeal should be allowed. Before appellate intervention in a prosecution appeal is justified the appellant must first persuade the court not to exercise its "residual discretion" to not interfere with the sentence.[35] The court retains a residual discretion to decline to intervene with the sentence imposed where it is found to be inadequate.[36]

[36] The exercise of the residual discretion is raised for consideration here because of delay in the appeal being heard. The respondent was sentenced on 22 April 2025. The notice of appeal was filed on 22 May 2025 and on 19 August 2025 the appeal was given a hearing date for 27 October 2025. At the hearing of the appeal on 27 October 2025 a number of issues arose concerning entries on the respondent's traffic history which required clarification as well as the respondent's performance on parole. The appeal was adjourned for further hearing on 17 November 2025.

[37] In the circumstances leave was granted pursuant to s 223 JA for the appellant to adduce new evidence clarifying penalties imposed in respect to certain entries on the appellant's traffic history. Leave was also granted to the respondent to adduce evidence as his performance on parole. Evidence was adduced by the respondent in the form of an oral report provided in court by an employee of Corrective Services with personal knowledge of and access to records pertaining to the respondent's parole supervision. At the time of the resumed hearing of the appeal the respondent had by then been under parole supervision for about 7 months. The respondent was reported as having been compliant with his parole reporting obligations and had self-reported a reduction in his consumption of alcohol. He had not re-offended and had attended all appointments and otherwise had been complying with the conditions of his parole release. He was reported as having engaged openly in conversations with his case manager who had been counselling the respondent about driving. The respondent reported purchasing an electric scooter and no longer had a temptation to drive.

[38] The respondent is not to blame for the delay in the hearing of the appeal. The result is that the exercise of the residual discretion should take into account that the respondent has had the uncertainty as to his fate for some months[37] but has otherwise been satisfactorily complying with his obligations under his parole release order. It is true that as a resident of Palm Island the respondent's appointments with his case manager have been each fortnight and he has not been required to undertake any other counselling or programs directed towards addressing his propensity for driving whilst disqualified. Nevertheless, the unchallenged evidence is that the respondent has been complying with his parole supervision obligations, has not re-offended and arguably more significantly has purchased a scooter which he is using as a lawful mode of transport. In submissions the respondent's solicitor made the point that unlike mainland communities where the use of scooters as a mode of transport is now commonplace, the same cannot be said concerning a community such as Palm Island and that by purchasing a scooter to get around the respondent has taken a significant step in addressing his propensity for driving disqualified. That submission, in my view, has merit.

[39] It can be accepted that if the appellant's appeal had been heard earlier the argument favouring re-sentencing the respondent to a term of actual imprisonment would have been more compelling. The fact that the respondent has been on parole for more than 7 months of a 15-month sentence, has not re-offended, has otherwise been compliant with his parole supervision and has taken positive steps at addressing his temptation to drive disqualified by finding an alternative means of transport makes the decision to re-sentence the respondent more finely balanced. In the result, the observations of the plurality in Green v The Queen[38] that an appeal should not come at too high a cost in terms of justice to the individual in my view tips the balance in favour of dismissing the appeal. This appeal's goal of providing guidance to sentencing courts has been satisfied by the conclusion that the sentence imposed upon the respondent was inadequate and that in all the circumstances of the offending including the respondent's multiple prior convictions for disqualified driving, a sentence of actual imprisonment was necessary and warranted to meet the purposes of sentence. Despite the appeal ground being made out, for the reasons explained the discretion conferred under s 225 JA to vary the sentence should not be exercised.

[1] [2006] QCA 134; [2007] 1 Qd R 344 at [30]

[2] Nicholson v GCMR Project Services Pty Ltd [2025] QCA 242 at [23]; Young v White [2016] QDC 159 at [9]; Commissioner of Police v Watmough [2015] QDC 46 at [60]

[3] R v Palmer; Ex parte Attorney-General (Qld) [2019] QCA 133 at [42]

[4] R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116 at [12]

[6] (1936) 56 CLR 499

[8] House v The King (1936) 56 CLR 499 at 505-506

[11] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]

[12] R v Dodd (1991) 57 A Crim R 349

[13] Veen v The Queen (No 2) (1988) 164 CLR 465 at 477

[14] [1991] 1 Qd R 375 at 380-381

[15] Lynch v Dixon [2004] NTSC 45 at [33]

[16] Hales v Garbe [2000] NTSC 49 at [6]

[17] Crook v Roberts (1990) 53 SASR 236 at 238

[18] Mick v Borgoyne [2006] NTSC 5 at [19]

[19] (2015) 255 A Crim R 192

[20] Barrett v Wilson [2015] TASSC 3; (2015) 69 MVR 333

[21] (2014) 120 SASR 50

[22] (1987) 47 SASR 324 at 325

[23] Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150

[24] Harman v Queensland Police Service [2018] QDC 146 at [16]; Jocumsen v Olive [2013] QDC 264 at [18]; Spizzirri v Commissioner of Police [2015] QDC 222 at [46]

[25] R v Serbanoiu [2007] QCA 257 at [22]

[26] R v Harris [2008] QCA 141 at p. 3

[28] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [53]- [54]

[29] [2017] QDC 42

[30] [2012] QDC 231

[31] [2018] QDC 146

[32] [2015] QDC 222

[33] [2014] QDC 114

[34] [2010] QDC 388

[35] R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150 at [56]

[36] Green v The Queen [2011] HCA 49; (2011) 244 CLR 462

[37] R v Waters; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 131 at [77]

[38] [2011] HCA 49; (2011) 244 CLR 462 at 479-480