His offending falls, unfortunately for everyone, including him, against the background of his criminal history, which does him no credit. He was born in Gosford and is now 31 years of age. He has been before the Queensland courts since 2011. Very often for property offending such as shop stealing and similar dishonesty type offences.

There are also some unusual and disturbing entries on his criminal history, which become more understandable when one considers his apparent medical history, to which I will return in a moment but, for example, he was dealt with in 2013 for begging for money or goods in a public place.

There was at least two similar entries in August of 2013. He has also breached bail on a number of occasions, and he has been sentenced to probation and breached probation. He has entries on his criminal history for fraud and other dishonesty offences. He does not seem to have any particular history of violence, although he did in 2019 apparently contravene some provision of a domestic violence order.

He has been sentenced to suspended imprisonment previously, but the primary feature of the present circumstances affecting the disposition of this appeal is that on the 6th of December 2024 he was placed, in effect, on a nine-month immediate parole release order in the Magistrates Court in Brisbane, something which attracted the ire of the sentencing magistrate on the occasion with which I am concerned.

That nine-month period of imprisonment referred to a number of stealing counts, and as I have mentioned, the present appeal concerns stealing after a previous conviction. Because he was on parole at the time of committing the offences, he could only be given a parole eligibility date, rather than a parole release date, something which the magistrate realised.

What it seems it is very unlikely he realised was the further ramifications of the way in which section 209 of the Corrective Services Act works; namely, that because his existing parole order was cancelled by reason of his conviction when he pleaded guilty to the later offences, the effect of the cancellation was to cancel his parole as at the date of the offending.

What those concerned with sentence calculation have calculated as a result is that he will not be released until a date in 2026, which it seems results in the effect that as a result of being dealt with for these matters, the overall period of imprisonment became 16 months, or 491 days. His full-time release date is the 11th of April 2026 because a period of 218 days, between the 12th of January 2025 and the 17th of August 2025, was added to his overall period of imprisonment.

That is, by imposing the sentence he did, the magistrate was sentencing Mr Kent to a period of imprisonment that was in excess of the nine months he was already serving, even adding cumulatively the six months that his Honour imposed. That is, it was more than 15 months.

This seems to have escaped the attention of everyone at the sentencing hearing, with the possible exception of the police prosecutor, who submitted for a wholly suspended sentence. Part of the material before this court is the transcript of the submissions made in the Magistrates Court on the 18th of August.

Having outlined the facts at page 1-6 of the transcript, the catalogue of the facts included that Mr Kent's co-offender, his partner, Ms Holstein, when they were apprehended with a trolley of groceries stolen from Coles, she said to investigating police that she and the appellant are diabetics and have no money so they had to steal food.

In that context the prosecutor said that she was seeking a suspended sentence, which attracted the rejoinder by the magistrate, "He's on parole when he did it with these. He got sentenced about two weeks before he did the first heist." A curious choice of nouns. And his Honour went on, "I meant - I mean, it's very compassionate of you, but you need to get a bit real."

It emerged that Ms Holstein, who was not on parole at the time, received three months' imprisonment, with immediate parole release, but she was sentenced for one less offence than the appellant.

What the magistrate was also told, however, is that Mr Kent is in receipt of a disability support pension which goes to the Public Trustee. Unfortunately, he has not been able to access those funds through the Public Trustee and that is why he does face homelessness at this time. He suffers from mental health conditions, including - the solicitor having clarified with his support worker through NDIS - what she described as schizophrenia affective disorder. It may well be that she meant schizoaffective disorder and, in any case, he's in receipt, apparently, of a package through NDIS. It seemed that his money, which goes to the Public Trustee, had not been accessible to him at the time when this occurred. The words used by the solicitor were, "Unfortunately he's not been able to access those funds through the Public Trustee and, in any event, that's why he does face this homelessness at this time."

In that context Ms Robertson, for the appellant, argues that it is a case where one considers the result through the lens of the well-known principles from House v R, that the result demonstrates the error. Stealing of groceries to feed oneself, even on three occasions, even with a criminal history, when someone has no funds and suffers from schizoaffective disorder and is at risk of becoming homeless, would not normally attract a 16-month period of imprisonment.

One of the observations from House v R [1936] 55 CLR at page 499, includes discussing a judicial discretion of this kind:

"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. If upon the facts the result is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court in the first instance."

Ms Robertson agitates the argument that when considered in context it is quintessentially a House-type case, in that particular error may be difficult to identify, but the result is unreasonable and plainly unjust, such that the appellate jurisdiction is invoked.

In my conclusion that submission should be accepted, but it also blends into - although no specific error is identified in the notice of appeal - those introductory words of, "if the judge acts upon a wrong principle". That is, with due respect to his Honour and everyone present at the time, in dealing with what are sometimes complex interactions of the statutory provisions, no one it seems particularly realising, including the magistrate, that the effect of what was happening would be that Mr Kent would be required to serve something in the order of 16 months' imprisonment. That is actually more than any courts had sentenced him to at that stage. That result demonstrates the application of the wrong principle and indeed what seems to have been an unintended consequence.

In my view the appropriate conclusion is that the appeal should be allowed. I do note that Ms Lewis, for the respondent, resists the appeal, arguing that the magistrate was aware, which is certainly correct, that there was a breach of parole and that is why an eligibility date had to be applied. But there does not seem to have been any real grappling with the true effect of section 209 of the Corrective Services Act and, in any case, my conclusion is driven by the conclusion that the result, to use the words of House v R, is unreasonable or plainly unjust. Thus, in my conclusion the appeal should be allowed.

The orders will be that the appeal is allowed. The sentence imposed on the 18th of August 2025 is set aside. I take into account that as a result thereof Mr Kent has served 53 days in custody, between that day and yesterday. Because of Mr Kent's mental health challenges and the uncontradicted observation that he had been performing reasonably well on parole, other than reoffending, in my conclusion both he and the community would benefit from him being supervised in the community for an ongoing period.

My conclusion is I should take the 53 days into account, but not impose any further custodial term, and instead offer Mr Kent 12 months' probation. That will achieve the result of having him supervised, and indeed one would hope, to a degree, supported in the community for a period of time and, of course, the 53 days that he has served, in my view, more than meets the punitive elements of the purposes of sentencing.

So the probation order which I speak of will contain the general requirements that he must not commit another offence during the period of the order, which will be 12 months. He must report to an authorised corrective services officer at Spring Hill within two business days of his release from prison. He must report to and receive visits from an authorised corrective services officer as they direct. He must take part in counselling and satisfactorily attend other programs directed by his authorised corrective services officer during the period of the order. He must notify an authorised corrective services officer of every change of his residence or employment within two business days of the change happening. He cannot leave or stay out of Queensland without their permission, and he must comply with every reasonable direction of his authorised corrective services officer.

I am empowered by section 94 to impose additional requirements and given Mr Kent's diagnoses I am inclined to do so. They are that he submit to medical, psychiatric and psychological treatment and comply during the whole of the period of the order, with conditions otherwise necessary to cause him to behave in a way acceptable to the community, to stop him from again committing the offence or offences for which the order is made, and to stop him from committing other offences.

The purpose and effect of the order, it should be explained to Mr Kent, who is not present, I know, are to have a process of rehabilitation and supervision continue in the community, rather than in custody. If he contravenes the requirements of the order, as he otherwise knows because he has been dealt with for breach of probation order, it is an offence to breach probation, and he can be prosecuted for it. Further, he can be brought back here and resentenced for this matter again.

Finally, he needs to be informed that - and again, I assume that he knows that - and that Ms Robertson has probably told him this, and that he will probably be told again - the order may be amended or revoked on an application by he, corrective services, or the Director of Public Prosecutions, if someone thinks it is no longer of utility.

Considering all of the features, including his criminal history, convictions are recorded. There are no exhibits, Ms Robertson, before this court, that would be appropriate to send to corrective services, I don't think.

HIS HONOUR: I have not got any reports or anything.

HIS HONOUR: Yes. Okay. So those are the orders. Anything else arising out of any of that?