Jackson v Queensland Police Service [2025] QDC 199

Penalties and Sentences Act 1992 (Qld) s 9, 9(1), 9(2A), 35

AB v R [1999] HCA 46; (1999) 198 CLR 111

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gronow v Gronow (1979) 144 CLR 513

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

McDonald v Queensland Police Service [2017] QCA 255

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

R v Lemass (1981) 5 A Crim R 230

R v Matauaina [2011] QCA 344

R v McIntosh [1923] St R Qd 278

R v Morse (1979) 23 SASR 98

R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384

R v Stieler [1983] 2 Qd R 573

Teelow v Commissioner of Police [2009] QCA 84 at [4]

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd for the appellant.

Burkett S of the Office of the Director of Public Prosecutions for the respondent.

• [1] On 5 August 2025, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Cairns, of 14 charges comprising contravention of a domestic violence order, common assault, stealing, fraud - dishonest application of property of another, possession of a knife in a public place or school, breach of bail condition, obstructed police officer, unlawful possession of suspected stolen property committed between 13 February 2025 and 26 July 2025; and he was sentenced to concurrent sentences for all charges except charge 5 which was a sentence of one month to be served cumulatively for an effective period of 4 months imprisonment.
• [2] The appellant now appeals his sentence in respect of charge 5, stealing, and the imposition of a cumulative sentence of one month imprisonment and a restitution order in the sum of $6,000, because it is excessive and infected by irrelevant considerations.
• [3] The appeal is properly conceded. The respondent accepts that the learned magistrate erred by failing to properly consider the appellant's financial capacity to meet any order for restitution.
• [4] On my review, I am persuaded that the sentence for charge 5 is excessive as a result of error. It seems to me that the learned magistrate misdirected himself in the exercise of the sentencing discretion by having regard to irrelevant considerations by drawing on his own experience, and speculating in the absence of evidence of the impact on the complainant in relation to the loss of the electric bike. And the learned magistrate erred in exercising the sentencing discretion by failing to take into account the material considerations of the nature and extent of compensation required and the appellant's capacity to pay. I am unable to discern any other basis upon which the imposition of a cumulative sentence was warranted in contrast to the other concurrent sentences. In my view, in the circumstances of the case, the appropriate tariff would be in the order of three months imprisonment to be served concurrently with all other sentences, without an order for compensation.
• [5] Accordingly, I allow the appeal and vary the sentence for charge 5 by setting aside the order for restitution and substitute instead of the one month cumulative sentence imposed, a sentence of three months imprisonment to be served concurrently with all other terms of imprisonment.

• [6] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).
• [7] 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.

1. 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]

• [9] 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.
• [10] The decisions of House v The King[6] and Kentwell v R[7] distinguish cases of specific error and indiscernible excess or inadequacy. In the case of specific error, the appellate court's power to intervene is enlivened and it is duty-bound to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.[8] 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.[9]
• [11] 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 excessive sentence.[10] 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.[11]

• [12] The prosecutor submitted that the offending demonstrated a flagrant and persistent disregard for court orders. Over a six-month period from February to July 2025, the 21-year-old defendant repeatedly contravened a five-year domestic violence protection order that had only been made in August 2024. The prosecution highlighted several particularly concerning incidents: on 13 February 2025 he telephoned the aggrieved, was refused permission to come to her home, but then appeared there anyway and showed her via FaceTime that he was already on the premises, causing her to flee in fear; on 21 February 2025 he entered the home uninvited, refused to leave, and shoved the aggrieved in the chest with open hands with sufficient force that she fell backwards into her young niece who was standing behind her; later that same evening he bombarded the aggrieved with abusive messages, called her a slut, told her to kill herself, and threatened to take his own life as a means of coercive control. Further breaches occurred when he arrived uninvited seeking a shower or clothing, and the aggrieved admitted him only because she feared the consequences of refusal. In addition to the domestic violence matters, the defendant committed a $6,000 theft of an electric bike belonging to a 71-year-old man, multiple instances of obstructing police (often while riding stolen bikes dangerously through traffic), fraud, possession of a knife in public, and breaches of bail. Ms Reedy emphasised the defendant's prior similar offending against the same aggrieved, his recent 12-month probation order (which he was still serving), and the strong need for both personal and general deterrence, denunciation, and community protection. She submitted that imprisonment was the only appropriate penalty and proposed a head sentence of three to four months' imprisonment on the common assault domestic violence offence (leaning toward the higher end to reflect totality), with shorter concurrent sentences on the remaining charges and a parole release date after declaring the 10 days already served.
• [13] The defendant's solicitor acknowledged that a term of imprisonment fell within range but urged the court to impose no more than three months in total. She stressed that her client was a 21-year-old Indigenous man to whom the principles in Bugmy v The Queen [2013] HCA 37 clearly applied: he had endured a profoundly deprived and traumatic childhood marked by an alcoholic and violent father, constant exposure to domestic violence, and educational attainment only to Grade 6. After moving to Cairns for a fresh start, he had become homeless and was living rough, which provided the context for many of the domestic violence order breaches - turning up seeking only a shower, clean clothes, or somewhere to rest. The common assault, while unacceptable, was described as a single open-handed push during an argument and was at the lower end of objective seriousness for domestic violence. The theft of the electric bike was portrayed as opportunistic rather than planned, and the bike had itself subsequently been stolen from the defendant. The repeated obstructing of police was linked to intergenerational trauma and a learned fear response rather than calculated defiance. Ms Hopkins highlighted the defendant's early guilty pleas (entered at the very first reasonable opportunity, including on a charge whose first mention was still nine days away), his genuine remorse, his long-standing methamphetamine addiction, and his emerging willingness to seek rehabilitation. She opposed any compensation order, pointing to his complete lack of financial capacity.
• [14] In his sentencing remarks, the learned magistrate accepted that the guilty pleas were entered at the earliest opportunity and reduced the sentence he would otherwise have imposed on that account. He nevertheless described the repeated breaches of the domestic violence order as a serious challenge to the authority of the court - "not just pieces of paper" and said such conduct would be met with imprisonment in order to vindicate that authority and achieve deterrence. The common assault domestic violence offence engaged s 9(2A) of the Penalties and Sentences Act 1992 (Qld), displacing the usual principle that imprisonment is a sanction of last resort. While the magistrate accepted that Bugmy factors were squarely engaged youth, Indigenous background, profound childhood deprivation, trauma, and limited education, he concluded that previous community-based sentences had entirely failed to deter the defendant and that no reasonable alternative to imprisonment existed.
• [15] Relevantly here, his Honour regarded the theft of the electric bike from a 71-year-old victim as especially serious, adopting a victim-centric perspective and noting the real and ongoing impact on an elderly person who had likely relied on the bike for mobility and who had been permanently deprived of it. Further, his Honour personally empathised with the complainant, drawing on his own experience as a victim of a stolen bike.
• [16] A head sentence of three months' imprisonment was imposed for the common assault domestic violence offence (reduced from approximately four months because of the plea). All other offences attracted either 14 days or one month imprisonment to be served concurrently with that head sentence, except for the stealing of the electric bike, which attracted one month served cumulatively. The total effective term was therefore four months' imprisonment. Ten days of pre-sentence custody were declared, convictions were recorded on all charges, and a compensation order of $6,000 in favour of the elderly victim was referred to SPER. A parole release date was fixed at 14 October 2025, meaning the defendant would serve approximately two months in actual custody following the hearing. The existing five-year domestic violence order was left undisturbed.

Did the learned magistrate err in the exercise of discretion by having regard to irrelevant considerations to order a cumulative sentence for the stealing offence?

• [17] The appellant argues that the learned magistrate lost neutrality by drawing on his personal experiences of being a victim of stealing, and thereby misdirected himself in the imposition of a cumulative sentence and compensation.
• [18] During the sentencing remarks, the learned magistrate regarded the stealing as especially serious and explicitly said:

"I'm going to turn to the stealing offence in particular. That was - that occurred on the 19th June 2025, and the victim in that matter was a Mr Graham McGarry, who was 71 years of age....And frankly, in sentencing you in relation to that particular matter, I must look through the eyes of the victim - take a victim centric view and look at what the effect on the victim is. He has been deprived of something that he used his hard-earned cash and resources - I do not know what his financial circumstances are, but I would presume at that age that he might be retired. And he now is in a position where his possession, which cost a significant amount of money is no longer available to him."

• [19] Further, his Honour personally empathised with the complainant, saying:

"I can indicate before I came to this job, in a previous life, my previous occupation when I was in Sydney, I had a similar thing happen to me with an electric bike, and it puts you in a very difficult position. So, in respect of this matter, I do view the stealing as significant simply because of the effect on the victim. The effect on the victim is significant given the quantum of the value, rather of the bike."

• [20] Relevantly here, his Honour regarded the theft of the electric bike from a 71-year-old victim as especially serious and explicitly adopts a "victim-centric view" saying he "must look through the eyes of the victim". But in doing so, his Honour misdirected himself in the exercise of the sentencing discretion by having regard to irrelevant considerations by drawing on his own experience and speculating in the absence of evidence of the impact of the offending on the complainant. The nominated value of the stolen electric mountain bike within the agreed Schedule of Facts was $6,000.
• [21] I am unable to discern any other basis upon which the unusual imposition of a cumulative sentence was warranted, in contrast to the other concurrent sentences. However, I accept that the sentence was moderated having regard to its cumulative effect and the imposition of compensation (which I deal with later). In my view, in the circumstances of the case, the appropriate tariff would be in the order of three months imprisonment to be served concurrently with all other sentences.

Did the learned magistrate err by not having sufficient regard to the appellant's capacity to pay restitution?

• [22] The court's power to order restitution or compensation is found in s 35 of the Act:

(i) in relation to which the offence was committed; or

(ii) taken in the course of, or in connection with, the commission of the offence; and

(b) pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property -

(i) in relation to which the offence was committed; or

(ii) in the course of, or in connection with, the commission of the offence; and

(c) pay compensation for personal injury suffered by a person (whether or not the person is the victim against whom the offence was committed) because of the commission of the offence.

(2) An order may be made under subsection (1) in addition to any other sentence to which the offender is liable.

• [23] Orders for restitution and compensation both require an offender to pay a monetary amount to the victim, but they have different meanings and purposes. The purpose of restitution is to restore the victim to the pre-offence state to make the victim "whole" again by compensating for the actual losses they suffered as a result of the offender's actions. For example, if someone steals from another person, the court may order them to pay restitution to the victim to cover the value of what was stolen. On the other hand, the purpose of compensation is to provide financial compensation for damages resulting from the offender's actions. In R v Stieler [1983] 2 Qd R 573 it was held that compensation is to be assessed on the same basis as damages are assessed in a civil case, the quantum of the order made being determined by considering what is appropriate in all the circumstances for the injury suffered.

1. However, in determining whether to impose an order for restitution, the court ought to consider the offender's capacity to meet the order. The court ought to avoid the futile exercise of making a hollow order against an impecunious offender, and in doing so, expose the offender to punitive consequences for inevitable breach.[13] Consideration ought be had to an offender's financial circumstances and any burden an order may have, any loss or destruction of, or damage caused to, a person's property because of the offence, and any value of any benefit received from the offence.

• [25] Here, it is properly conceded that the appellant lacks any realistic capacity to meet the order for restitution in terms of both quantum and time to pay.
• [26] For these reasons, in my respectful view, the learned magistrate erred in exercising the sentencing discretion by failing to take into account the material considerations of the nature and extent of compensation required and the appellant's capacity to pay. Again, this resulted in an excessive sentence outside the permissible range in the circumstances of the case.

• [27] Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
• [28] The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 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 section 9 of the Penalties and Sentences Act.
• [29] At first instance, in circumstances where he was remanded on other charges not before the Court, the learned Magistrate took into account but did not declare ten days of pre-sentence custody between 26 July 2025 and 4 August 2025. I accept that approach in the circumstances, and this approach also supports a reduction in the overall effective sentence.
• [30] 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 in charge 5, 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.
• [31] In my view, in the circumstances of the case, for charge 5, the order for restitution should be set aside, and a concurrent sentence of three months imprisonment should be substituted for the one month cumulative sentence imposed on the 25 August 2025.

• [32] For these reasons, I make the following orders:
  1. Appeal allowed.
  2. The sentence and orders of the Magistrates Court made in Cairns on 25 August 2025 are varied for charge 5 committed on 19 June 2025 as follows:
     1. The order for restitution of $6,000 is set aside; and
     2. The cumulative sentence of one month imprisonment is set aside and substituted with a sentence of three months imprisonment to be served concurrently with the sentences imposed for all other charges.
  3. The sentence is otherwise affirmed.

1. [1] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255 at [47].

[2] White v Commissioner of Police [2014] QCA 121 at [5]- [8].

[3] White v Commissioner of Police [2014] QCA 121 at [5]- [8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6_; McDonald v Queensland Police Service_ [2017] QCA 255 at [47].

[4] R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.

[5] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [22] - [23] followed in Teelow v Commissioner of Police [2009] QCA 84 at [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255 at [47]; contrast Forrest v Commissioner of Police [2017] QCA 132 at 5.

[6] House v. The King (1936) 55 CLR 499 at 504 and 505.

[7] Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R [1999] HCA 46; (1999) 198 CLR 111 at [130] per Hayne J (minority).

[8] Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R [1999] HCA 46; (1999) 198 CLR 111 at [130] per Hayne J (minority).

[9] House v The King (1936) 55 CLR 499, 504 and 505_, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc_ [1981] HCA 39; (1981) 148 CLR 170, 176-178_; Norbis v Norbis_ [1986] HCA 17; (1986) 161 CLR 513, 517-519, and Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R [1999] HCA 46; (1999) 198 CLR 111, [130] per Hayne J (minority). See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J, also applied by Chesterman J in R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 at [54].

[10] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR 513 at 519, 525, 534 and 537.

[11] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176-178; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 517-519

1. [13] Cf. R v Matauaina [2011] QCA 344.