Jones v Queensland Police Service [2022] QDC 281

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

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

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

Mill v The Queen [1988] HCA 70; [1988] 166 CLR 59

R v Lomass (1981) 5 A Crim R 230

R v McIntosh [1923] St R Qd 278

R v Morse (1979) 23 SASR 98

R v Nagy [2003] QCA 175; [2004] 1 Qd R 63 at 72

The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006

The Queen v Crofts [1998] QCA 60; [1999] 1 Qd R 386

Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

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

White v Commissioner of Police [2014] QCA 121

Forrest v Commissioner of Police [2017] QCA 132

McDonald v Queensland Police Service [2017] QCA 255

The Office of Director of Public Prosecutions for the Respondent Crown

• [1] On 14 September 2022 in the Magistrates Court held in Cairns, the appellant was convicted and sentenced on her own plea of guilty to 15 street and property offences committed between 8 January 2022 and 3 April 2022. Some offending was committed in breach of a 6 month probation order imposed on 11 March 2022 and she was re-sentenced for 4 offences subject of that order.
• [2] The effective head sentence of 15 months imprisonment was carried by the sentence for the charge of Enter premises and commit indictable offence by break committed on 8 January 2022, with lesser concurrent terms of imprisonment for the remaining offences. The Court declared 75 days in pre-sentence custody as time served under the sentence. The Court fixed a parole release date at 1 February 2022, effectively 7 months (being 46.7%) of the period of imprisonment.
• [3] The appellant now appeals her sentence on the grounds that it is manifestly excessive because:
  1. The sentencing magistrate erred by failing to take into account the mitigating circumstances surrounding the offending as advanced by the appellant's solicitor; and
  2. The sentencing magistrate erred by the fixing of the parole release date beyond the "one-third mark" rendering the sentence manifestly excessive.
• [4] The appeal is opposed. The respondent argues that the sentence was within the permissible range for concurrent sentences for the whole offending.
• [5] On my review, I have respectfully concluded that the sentencing magistrate's failure to explicitly consider the contextual circumstances of the offending in order to determine whether a sentence is just and appropriate, bespeaks a specific error in the exercise of the sentencing discretion. Having reached this conclusion of specific error, the sentence must be set aside and this court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed.
• [6] Further, in my respectful opinion, the learned magistrate misdirected herself by acting on a wrong principal and the exercise of discretion miscarried by adopting a notional sentence of 18 months of imprisonment, before then reducing that notional sentence to take account of the plea of guilty. It seems to me that a notional head sentence of 18 months of imprisonment (before reduction for the plea of guilty) was disproportionate to the gravity of count 1 for the offence of Enter premises and commit indictable offence by break. Even allowing for some uplift adequate to accommodate the overall criminality in the context of concurrent sentencing the effective sentence should not have exceeded 15 months before any account of a plea of guilty.
• [7] The appellant concedes, properly in my view, that an effective sentence of 15 months of imprisonment is within, but at the high end of the range consistent with a global approach. In order to take proper account of the appellant's pleas and recognising her efforts on remand in custody, the parole release date ought to be set at about one third of the sentence.
• [8] Accordingly, I allow the appeal, and will order that the sentence and orders of the Magistrates Court made in Cairns on 24 September 2022 are varied by setting the parole release date as 1 December 2022 in lieu of 1 February 2022.

1. The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to section 223 of the Justices Act the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave. 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. 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.[2]
2. For an appeal by way of rehearing "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,"[3] and thereby resulting in a manifestly excessive sentence.
3. This court ought not interfere with a sentence unless it is manifestly excessive, that is, "beyond the acceptable scope of judicial discretion" or "so outside the appropriate range as to demonstrate inconsistency and unfairness".[4]
4. 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 a manifestly excessive sentence.[5] In that context, it may be vitiated by an error of principle, if there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[6]

• [13] The High Court held in House v The King[7] that:

It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then her determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for her if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in her order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

• [14] The High Court in Kentwell v R[8] held:

In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.

• [15] The decisions of House v The King[9] and Kentwell v R[10] are distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

Did the sentencing magistrate err by failing to have regard to the defendant's account?

• [16] The offending before the court was subject of the following charges:
  1. Enter premises and commit indictable offence by break on 8 January 2022;
  2. Attempted unlawful entry of vehicle for committing indictable offence on 6 March 2022;
  3. Wilful damage on 6 March 2022;
  4. Wilful damage on 9 March 2022;
  5. Attempted unlawful entry of vehicle for committing indictable offence on 9 March 2022;
  6. Receiving tainted property on 25 March 2022;
  7. Commit public nuisance on 25 March 2022;
  8. Wilful damage of police property on 25 March 2022;
  9. Commit public nuisance on 3 April 2022;
  10. Fail to take reasonable care and precautions in respect of syringe or needle on 3 April 2022;
  11. Possessing dangerous drugs on 3 April 2022;
  12. Possession of a knife in a public place or a school on 1 July 2022;
  13. Possessing dangerous drugs on 1 July 2022;
  14. Commit public nuisance on 1 July 2022; and
  15. Breach of a probation order on 3 April 2022.
• [17] The offending in charges 6 to 14 was committed while the defendant was subject of a 6 month probation order imposed on 11 March 2022. Consequently, the appellant was also resentenced on those charges being:
  1. Commit public nuisance within licensed premises or in the vicinity of licensed premises on 22 May 2021;
  2. Obstruct police officer on 22 July 2021;
  3. Receiving tainted property on 22 July 2021; and
  4. Fraud - dishonest application of property of another on 22 July 2021.
• [18] The sentence proceeded on an agreed statement of facts which is contained in exhibit 1 Sentencing Schedule. However, other surrounding circumstances were proffered by the defence, particularly relevant to charge 1 of enter premises and commit indictable offence by break committed on 8 January 2022.
• [19] The prosecution relied upon the following particulars for charge 1:

• [20] The defendant's solicitor sought to contextualise the offending in charge 1 by explaining that the defendant was escaping from unwanted sexual advances, found herself stranded, and broke into the premises in that desperate state. He said:

Your Honour, turning to the circumstances of the offending, the first offence was on the 8th of January 2022. That's the enter premises by break and commit an indictable offence and I accept that that's the most serious offence that your Honour is dealing with today that would attract the most serious penalty. My instructions are with regard to that offence that my client was planning to go up to Port Douglas with a man who she thought was a friend. Instead, they stopped at a camp site near Palm Cove and while at that camp site, he was making unwanted sexual advances towards her.

She tells me that she needed to escape. She had been drinking; she was not able to drive. She made attempts to hitchhike back to Cairns, but no one picked her up. She found herself in those circumstances - she was desperate for money, she was desperate to find a toilet and she broke into the complainant business. It was unsophisticated, quite clearly unplanned, she didn't have any house-breaking instruments with her or anything; she used her hands.

It was a commercial premises and no one was present at the time, which in my submission makes it more serious - less serious, my apologies - than other offending of a like nature. The property taken was not insignificant yet in my submission the offending is at the lower end of the scale with respect to that particular offence.

• [21] Other submissions were advanced in relation to charges 3 and 4 of attempted enter vehicles committed; charges 7, 9 and 14 of public nuisance.
• [22] It is a conventional practice in Queensland for defence to make submissions of surrounding and mitigating circumstances. Pursuant to s 132C(2) of the Evidence Act 1977 (Qld), the sentencing magistrate "may act on an allegation of fact that is admitted or not challenged". By operation of s 132C(3), "if an allegation of fact is not admitted or is challenged, the sentencing magistrate may act on the allegation if satisfied on the balance of probabilities that the allegation is true". And pursuant to s.132C(4), "the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true".
• [23] The submission was both unchallenged and uncontested by the prosecutor. During the course of her sentencing reasons, the sentencing magistrate highlighted the factual basis, and nature and seriousness of the offending, but was otherwise silent about the defendant's submissions as to the context for the offending in charge 1 (and also submissions on the other charges 3, 4, 7, 9 & 14). Critically, the defendant's factual contentions were not rejected by the sentencing magistrate as being improbable.[11]
• [24] It seems to me that the failure to explicitly consider the contextual circumstances of the offending in order to determine whether a sentence is just and appropriate bespeaks a specific error in the exercise of the sentencing discretion. Having reached this conclusion of specific error, having regard to the decisions of House v The King[12] and Kentwell v R,[13] the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. I deal with this below.

Did the sentencing magistrate err by setting the parole release after 7 months to result in a manifestly excessive sentence?

• [25] The appellant properly concedes that the head sentence of 15 months imprisonment, whilst high, does not fall outside the range of possible sentences. But it contends that the failure to fix the parole release date at the customary one-third mark resulted in a sentence that was manifestly excessive.
• [26] Both parties properly acknowledge, and it is well settled, that there is and ought not be a fetter of the sentencing judge's discretion in setting a parole release date at or about one-third. It could be more or less. The real issue is one of totality when imposing a head sentence on the most serious offence to reflect the total criminality of offending with concurrent lesser sentences.
• [27] The appellant was 42 years old at the time of her offending. She was burdened by a relevant and prolific criminal history spanning over two decades from 1999 to 2022 including, relevantly: 42 prior convictions for enter premises with intent and burglary (including attempts and with and without circumstances of aggravation); 5 convictions for burglary (including with and without circumstances of aggravation); 38 convictions for stealing (including unauthorised dealing with shop goods); 10 convictions for fraud; 10 convictions for possessing and receiving tainted property; 6 convictions for Public nuisance or disorderly behaviour; 8 convictions for wilful damage; 12 breaches of bail and failing to appear in accordance with undertaking charges; 5 contravenes of police directions or requirements; 6 convictions for public nuisance; 17 convictions for drug possession and paraphernalia related offences; 14 convictions for unlawful use of a motor vehicle (including unlawful entry and attempts); 11 convictions for assault or obstruct police; 6 convictions for common assault and serious assaults.
• [28] The appellant has received sentences of fines, community service, good behaviour periods, probation, an intensive correction order, suspended sentences of imprisonment and imprisonment with release on parole. She has 4 previous breaches of probation, one breach of intensive correction, 5 breaches of suspended sentences, and has previously reoffended on parole.
• [29] It is trite law that the appellant's criminal history is a relevant matter for the proper exercise of the sentencing discretion. Further, s 9(10) provides:

"In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to -

(a) the nature of the previous conviction and its relevance to the current offence;

(b) the time that has elapsed since the conviction.

"Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence."

• [31] Clearly enough, the provisions reflect the common law as it stood and as proclaimed in Veen v The Queen (No. 2) [14] as follows:

The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but 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 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 her 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 her 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. Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375.

• [32] The appellant had a deprived upbringing and was exposed to domestic violence as a child, and she was also a victim of domestic violence. Her mother was killed as a result of a domestic violence incident. The appellant became dependant on illicit substances, that lifestyle underlies her recidivism. Remarkably, the appellant demonstrated a renewed commitment towards rehabilitation as evidenced by written evidence from herself, Red Cross, and Sisters Inside.
• [33] The prosecutor contended for a global head sentence of 15 months to 2 years of imprisonment, attaching to charge 1. The prosecutor made no submission about the time for her release on parole. The appellant's solicitor conceded that imprisonment was warranted in the range of 8 to 12 months attaching to Charge 1, and submitted the appellant should be released on parole for a period "longer than six months" to foster her rehabilitation and reintegration into the community. In the exchange with defence, the sentencing magistrate exposed her approach saying "Is this one matter where we should consider factoring in the plea of guilty but instead of making the parole as at a third, making it as a-half perhaps, or even more, but reducing the head sentence to factor in the plea?" The sentencing magistrate was understandably desirous of not wanting to "set her to fail" and "wanting her to get through the order". The defence solicitor urged that rehabilitation under supervision in the community was preferred.
• [34] Accordingly, in proclaiming the sentence, the learned magistrate said:

In the circumstances, taking into account all matters, I do consider that the head sentence should go on the break and enter offence of the January 2022. I do consider that I will give that an uplift. I am satisfied that the appropriate penalty for that offence is some 12 to 15 months, but it does need an uplift because I am also sentencing for all the other offences which have all occurred on different dates to that day, and continued - the offending continued despite the fact that you were on a probation order and on bail for the earlier offences. And I also need to re-sentence you on the offences from the Tully offences. So my view is that the appropriate head sentence is one of 18 months. But I - for reasons which I will discuss shortly, I do propose to reflect the plea by reducing the head sentence by a period of 18 months to reflect the plea.

• [35] The sentencing magistrate imposed an effective head sentence of 15 months imprisonment to be carried by charge 1 of Enter premises and commit indictable offence by break, with lesser concurrent terms of imprisonment, as follows:
  1. Enter premises and commit indictable offence by break - 15 months imprisonment.
  2. Attempted unlawful entry of vehicle for committing indictable offence - 12 months imprisonment.
  3. Wilful damage - 6 months imprisonment.
  4. Wilful damage - 6 months imprisonment.
  5. Attempted unlawful entry of vehicle for committing indictable offence - 12 months imprisonment.
  6. Receiving tainted property - 12 months imprisonment.
  7. Commit public nuisance - 1 month imprisonment.
  8. Wilful damage of police property - 3 months imprisonment.
  9. Commit public nuisance - 1 month imprisonment.
  10. Fail to take reasonable care and precautions in respect of syringe or needle - Convicted not further punished.
  11. Possessing dangerous drugs - 2 months imprisonment.
  12. Possession of a knife in a public place or a school - 3 months imprisonment.
  13. Possessing dangerous drugs - 3 months imprisonment.
  14. Commit public nuisance - 3 months imprisonment.
  15. Breach of a probation order - Convicted not further punished.
  16. Commit public nuisance within licensed premises or in the vicinity of licensed premises - 1 month imprisonment.
  17. Obstruct police officer - 2 months imprisonment.
  18. Receiving tainted property - 4 months imprisonment.
  19. Fraud - dishonest application of property of another - 6 months imprisonment.
• [36] All sentences were ordered to be served concurrently with each other. The court declared 75 days in pre-sentence custody as time served under the sentence. The parole release date was fixed at 1 February 2022 being 7 months of the period of imprisonment.
• [37] The appellant argues that, having accepted that the appropriate penalty for charge 1 is "some 12 to 15 months", the purported "uplift" to a notional 18 months imprisonment to reflect the overall criminality extended beyond the permissible range for that charge. It is further submitted that the reduction of 3 months for the appellant's pleas of guilty was illusory, with the result that the effective sentence of 15 months with parole after 7 months (or 46.7%) resulted in a manifestly excessive sentence.
• [38] The respondent contends that the sentencing magistrate adopted the Nagy[15] approach to the sentence by increasing the sentence for the most serious charge to a notional 18 months imprisonment to reflect the whole criminality, and then reducing that back to 15 months to take account of the defendant's plea. In that way, it is argued that the sentencing magistrate properly set the parole release date after the defendant serves 7 months in actual custody.
• [39] In Mill v The Queen,[16] the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2nd Edition, page 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?

• [40] In The Queen v Crofts[17], 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.

1. The ambit of the totality principle has been extended as explained in The Queen v Beattie, ex parte Attorney-General (Qld)[18] 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'.

1. In The Queen v Kendrick,[19] Morrison JA (with whom Fraser JA and Henry J agreed) provided a superb analysis of the relevant authorities.[20] I don't propose to repeat all that was said by his Honour, with which I, of course, agree. At paragraph [56], his Honour distilled the approach as follows:

The preferable approach, derived from Mill and Johnson, is that a sentence is fixed for each offence, then aggregated before taking the next step of determining concurrency or accumulation, and to consider what is an appropriate non-parole period. However, Johnson recognised that it was not an immutable practice.[21]

• [43] In sentencing concurrently, it is permissible to allow for the overall criminality by imposing a sentence for the most serious offence which is more severe than it would be if the offence were falling for sentence in isolation.[22] However, such a sentence must remain within a just range of punishment for the offence, lest it offend the over- arching principle that a sentence must not be so severe as to be disproportionate to the gravity of the offence to which it attaches.[23]
• [44] Manifest excess may be exposed, absent any specific identifiable error, by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases.
• [45] The court has been referred to the following comparative cases: King v Commissioner of Police [2019] QDC 131; R v Taylor [2007] QCA 214; Ferrall v Queensland Police Service [2018] QDC 100; Annas v Queensland Police Service [2018] QDC 251; Pamtoonda v Commissioner of Police [2021] QDC 207; Tyhorn v Commissioner of Police [2022] QDC 194 and Kelly v Commissioner of Police [2017] QDC 156.
• [46] King pleaded guilty to 15 offences; the most serious of which was an enter premises and commit indictable offence. She was sentenced to an effective head sentence of 15 months imprisonment, with parole release set after King had served five months in custody. She was 23 at the time and had a limited criminal history comprising of property related offences committed when she was 17 and breaches of community based orders. The offending was persistent and extended over a four month period; occurring over six separate occasions. She was described as a recidivist offender and was also on bail for earlier offences. The appellate court observed that "15 months imprisonment imposed in this case was towards the upper end of the range", but ultimately the head sentence was not disturbed the sentence.
• [47] In Taylor, the offender was 22 years old when sentenced and 20 at the time of offending, with a relatively minor criminal history. He committed 22 dishonesty offences over two short time frames. The total value of property loss involved in all the offences was $9,119.00. The offences involved breaking into business premises. Most of the offences were committed whilst he was on bail. Twelve of the offences related to breaking into a school on one occasion. Taylor made extensive admissions. On appeal, the sentenced was reduced from three years imprisonment to one of two years imprisonment to be suspended after eight months. Taylor is a far more serious example of property offending consisting of 10 offences of entering, or attempting to enter, premises by break succeeded by a further tranche of 12 similar offences committed on bail.
• [48] In Ferrall the offender was 35 and the offences were two enter premises and commit indictable offence by break alongside some minor drug and nuisance related offences. His criminal history was limited in that he only had two dated entries for which he had only been sentenced to fines. On appeal, the sentence was reduced from 12 months imprisonment to six months imprisonment, with immediate release on parole (after having served 110 days pre-sentence custody). This is a less serious example of the offence and the sentence of 6 months imprisonment is not comparable.
• [49] Annas was sentenced for an offence of burglary and stealing and unlawful use of a motor vehicle. He was on parole and was sentenced to a total period of three and a half years imprisonment. This is far more serious and is unhelpful in relation to the present case.
• [50] Pamtoonda was also far more serious case, involving an offence of violence. He pleaded guilty to 26 charges committed over an 11 month period. The offences comprised of property and violence related offending. He was sentenced to a head sentence of three years imprisonment, with release on parole after having served one-half in custody. This is a good example of circumstances that might warrant setting the parole release date beyond the one-third mark.
• [51] Tyhorn was decided shortly before the sentence below. The offender was charged with two offences of enter premise and other lesser offences (possess tainted property; stealing; stealing; stealing; stealing; stealing; unauthorised dealing with shop goods). The enter premises charges involved, on one occasion entering a car park with an associate and taking away a carton of beer and the lid of a battery box. On the other occasion the defendant walked past a business and stole an electronic device described as an "Uber Eats tablet". He was a mature man, aged 38 at the time of the offences. He had a serious history with 78 offences. The sentence of 18 months imprisonment, was reduced to 12 months imprisonment with a parole release date at the date of the hearing of the appeal (which amounted to approximately 5 months in actual custody).
• [52] In Kelly, the offender was sentenced for enter premises and commit indictable offence, fraud, wilful exposure and failure to appear. The enter premises offence involved the offender opening the victim's garage and removing a lawnmower, empty fuel and a fishing rod. The defendant had a history of property offences, domestic violence offences, and drug offences. The enter premises offence occurred about 4-7 days after the offender was convicted for a burglary offence. He was sentenced to 12 months imprisonment with a parole release date set at the one-third mark, which was not disturbed on appeal.
• [53] 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. Her offending occurs against a background of a violent history, domestic violence and disobedience. The gravamen of her offending is found in the serious assault of police and earlier domestic violence. Matters of personal and general deterrence are particularly relevant. The court must also look at the totality of the appellant's criminal behaviour and ask itself what the appropriate sentence for all the offences is, is it just and appropriate pursuant to s 9 of the Act?
• [54] In my respectful opinion, the learned magistrate misdirected herself by acting on a wrong principal and the exercise of discretion miscarried by adopting a notional sentence of 18 months of imprisonment, before then reducing that notional sentence to take account of the plea of guilty. It seems to me that a notional head sentence of 18 months of imprisonment (before reduction for the plea of guilty) was disproportionate to the gravity of count 1 for the offence of Enter premises and commit indictable offence by break. Even allowing for some uplift adequate to accommodate the overall criminality in the context of concurrent sentencing the effective sentence should not have exceeded 15 months before any account of a pleas of guilty.
• [55] The appellant concedes, properly in my view, that effective sentence of 15 month imprisonment is within but at the high end of the range consistent with a global approach. In order to take proper account of the appellant's pleas and recognising her efforts on remand in custody, the parole release date ought be set at about one third of the sentence.

• [56] Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
• [57] 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 section 9 of the Penalties and Sentences Act 1992 (Qld).
• [58] 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.
• [59] While the head sentence and concurrent sentences ought not be disburdened, it seems to me that it is appropriate in all the circumstances that I set a parole release date at 1 December, 2022 which equates to one third of her sentence.

• [60] Accordingly, I allow the appeal, and will order that the sentence and orders of the Magistrates Court made in Cairns on 24 September 2022 are varied by setting the parole release date as 1 December 2022 in lieu of 1 February 2022.

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, [47].

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

1. [3] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, [22] - [23] followed in Teelow v Commissioner of Police [2009] QCA 84, [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255, [47]; contrast Forrest v Commissioner of Police [2017] QCA 132, 5.
2. [4] R v Morse (1979) 23 SASR 98; R v Lomass (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.
3. [5] 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 at 519, 525, 534 and 537.
4. [6] 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

[8] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R [1999] HCA 46; (1999) 198 CLR 111, [130] per Hayne J (minority).

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

[10] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R [1999] HCA 46; (1999) 198 CLR 111, [130] per Hayne J (minority).

[11] R v Field [2017] QCA 188 at [48].

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

[13] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R [1999] HCA 46; (1999) 198 CLR 111, [130] per Hayne J (minority).

[14] Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at [14]

[15] R v Nagy [2003] QCA 175; [2004] 1 Qd R 63 at 72.

[16] Mill v The Queen [1988] HCA 70; [1988] 166 CLR 59.

[17] The Queen v Crofts [1998] QCA 60; [1999] 1 Qd R 386 at 387.

1. [18] The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 at [19].
2. [19] The Queen v Kendrick [2015] QCA 27.

[20] The Queen v Kendrick [2015] QCA 27 at [31]- [41].

[21] See for example, R v Coleman Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had regard to the whole of the existing sentence (not just the remainder) and the cumulative sentence.

[22] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656, 677 [64]; R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, 72

[23] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 477.