Kent v Commissioner of Police [2025] QDC 211

Justices Act 1886 (Qld) s 222, 222(2)(c), 223, 223(2)

Penalties and Sentences Act 1992 (Qld) s 9, 9(1), 146, 147, 147(2), 147(3), 147(4)

Weapons Act 1990 (Qld)

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

Green v Queensland Police Service [2015] QDC 341

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

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

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

Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656

PFM v Queensland Police Service [2017] QDC 210

Queensland Police Service v KBH [2023] QDC 26

R v Cooney [2019] QCA 166

R v Lemass (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

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

R v Wood [1994] QCA 297

Teelow v Commissioner of Police [2009] QCA 84

The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206

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

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

White v Commissioner of Police [2014] QCA 121

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

• [2] On 20 November 2025, the appellant plead guilty in the Innisfail Magistrates Court to seven offences: possession of a knife in public, driving unlicensed, three breaches of a domestic violence order, drug possession, and possession of property suspected of being used in drug offending. He was sentenced to concurrent terms, including an activated one month suspended sentence for drug possession. The head sentence of six months imprisonment was carried by the contravention of a domestic violence order. For the unlicensed driving offence, he was disqualified from driving or holding a licence for one month. A parole release date was fixed after serving one month in custody.
• [3] The appellant now appeals against his sentence on the grounds that it is excessive, unreasonable and unjust in all circumstances because the learned magistrate erred in exercising the sentencing discretion by acting inconsistently with similar cases, failing to consider mitigating factors, and allowing erroneous or irrelevant matters to guide or affect him.
• [4] The respondent opposes the appeal on the basis that the sentence does not demonstrate specific error or otherwise fall outside a sound exercise of the sentencing discretion, such that the sentence imposed was excessive.
• [5] Upon review, in my respectful view the learned magistrate did not err in the exercise of the sentencing discretion to activate the suspended sentence, but it seems to me that the head sentence of six months carried by the last contravention of a domestic violence order comprising prohibited contact by way of a "selfie" and text messages, is excessive and falls outside the permissible range. In resentencing, I will impose one month imprisonment for the most serious contravention of the domestic violence order, to be served concurrently with the other sentences and orders before the court, but cumulatively upon the activated one month suspended sentence for previous drug possession. Although immediate parole might have been appropriate at the original sentencing, since the appellant is now remanded for alleged further offending pending this appeal, I fix his parole release date as the date of this judgment.
• [6] Accordingly, I will allow the appeal and sentence the appellant accordingly.

• [7] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).
• [8] 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]
2. 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.

• [11] 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 resentence, 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]

1. 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]

• [13] "Special grounds" are required before fresh, additional, or substituted evidence (new evidence) may be admitted on appeal: s 223(2) Justices Act. The discretion will generally be invoked where the new evidence:

(a) Could not have been obtained with reasonable diligence for use at the hearing;

(b) Would probably have an important influence on the result of the case, even though not be decisive; and

(c) Must be apparently credible though not incontrovertible.

• [14] If resentencing is required, the Crown seek leave to adduce further evidence of the appellant's alleged offences for which the appellant has been charged by further offending pending this appeal after receiving appeal bail on 28 November 2025. The application is not opposed.
• [15] Plainly, this further evidence could not have been obtained with reasonable diligence for use at the hearing. It will have an important influence on the result of any resentencing in relation to deterrence, timing of any supervised release on parole, and the utility of any sentence to be served in the community. The QP9 Court Brief source material is apparently credible, though it is not clear whether the facts are incontrovertible.

• [16] The sentence proceeded on agreed facts, backgrounded by the appellant's criminal history and the domestic violence protection order.
• [17] The offending can be summarised as follows:

(a) Charge 1 - possession of a knife in a public place or school - On 11 September 2025, the appellant was located by police, hiding under a trailer, with two pocketknives on his person.

(b) Charge 2 - driving of motor vehicle without a driver licence (repeat offender) - On 4 October 2025, the appellant's vehicle was intercepted by police in South Johnstone. He was unlicensed, following a disqualification by the Innisfail Magistrates Court.

(c) Charge 3 - contravention of a domestic violence order - Between 13 October 2025 and 16 October 202, the appellant resided at the complainant's address for three days, in breach of a residential condition, immediately after the temporary protection order was made.

(d) Charge 4 - contravention of a domestic violence order - Between 17 October 2025 and 5 November 2025, police identified 29 calls and 21 text messages between the appellant and complainant, in breach of a no contact condition. The text messages were of a general nature.

(e) Charge 5 - contravention of a domestic violence order - Between 3 November 2025 and 20 November 2025, police identified a further 72 calls and 36 text messages between the appellant and complainant, in breach of a no contact condition, immediately after the protection order was made. Police also located a "selfie" taken by the appellant, in bed with the complainant, on 4 November 2025.

(f) Charge 6 - possessing dangerous drugs & Charge 7 - possess property suspected of having been used in connection with the commission of a drug offence - On 20 November 2025, the appellant was located by police at the Commonwealth Hotel in possession of a gram of cannabis and scissors.

• [18] Minor amendments were made to the bench charge sheets regarding the dates of the temporary and final protection orders. On penalty, the prosecutor submitted that the knife and scissors should be forfeited under the relevant sections of the Weapons Act 1990 (Qld) and Drugs Misuse Act 1986 (Qld). He noted the existing suspended sentence for personal-use drug possession and submitted that it could be extended due to the new similar offence. He emphasised that the repeated breaches of the no-contact domestic violence order were the most serious offences, agreeing with the magistrate's characterisation of the appellant's actions as "stupid" and "contemptuous". He inferred that the aggrieved appeared to consent to or initiate ongoing contact, as there were no contrary instructions, and highlighted that the appellant had no prior domestic violence convictions, with significant violent history dating back to 2005-2006 and the remainder mostly drug-related and failures to appear. Given the appellant's diminished prospects for rehabilitation (including a recent breached probation order), he submitted that supervision might offer limited benefit for a 50-year-old man, citing the case of Queensland Police Service v KBH [2023] QDC 26 to argue that repeated DV breaches typically warrant imprisonment rather than fines (referencing a benchmark of six months with immediate parole). For the unlicensed driving charge, he submitted that a minimum one-month disqualification period was appropriate.
• [19] The appellant's solicitor outlined the appellant's personal circumstances: a 50-year-old Queensland-born man with grade 9 education, former trawler and metalwork employment, now a long-term pensioner living precariously (couch-surfing and reliant on others for support), with no local family ties except step-grandchildren (following the recent death of a previous partner). He submitted that the appellant had moved to the area to support his ex-partner and grandchildren but now planned to relocate south to family in Brisbane, Gosford, or Melbourne for his own safety, recognising he must end the relationship despite mutual desire to continue, driven by "affairs of the heart" leading to irrational and stupid decisions (including the contemptuous selfie breach). He argued this was the appellant's first domestic violence offending with no prior DV record. Initially, he submitted for fines only with no convictions recorded, but alternatively sought probation or, if imprisonment was imposed (including activation of the suspended sentence), but with immediate release on parole to provide guidance and supervision rather than actual custody. He attributed recent offending to personal turmoil involving a loss of partner, relocation of grandchildren to Weipa, involvement with a woman of "wrong character", and suggested that the appellant regretted not pursuing legal medical cannabis. He agreed with the prosecutor on a one month driving disqualification but opposed any period of actual imprisonment as unjustifiable.
• [20] In sentencing remarks, the learned magistrate treated the appellant's pleas as early or timely, particularly for the knife possession, unlicensed driving, and the initial domestic violence breach, and applied corresponding mitigation. He emphasised that the domestic violence breaches showed a contemptuous disregard for court orders. The appellant had attended court on 4 November 2025 seeking a variation to permit contact, which was refused, yet within hours took a selfie with the aggrieved in direct breach. His Honour found the conduct deliberate, provocative, and motivated only by "affairs of the heart".
• [21] His Honour noted the absence of prior domestic violence convictions and placed no weight on dated violence entries. He regarded the appellant's ongoing drug use as highly relevant, observing that, as a mature man, he had repeatedly refused rehabilitation opportunities. The appellant's driving history was described as poor, with the unlicensed driving offence arising from a failure to renew his licence after his disqualification ended in January 2025. His Honour rejected any notion that personal beliefs could override court orders.
• [22] The learned magistrate noted the appellant was subject to a suspended sentence for drug possession and had reoffended, escalating further with deliberate domestic violence breaches. He considered the appellant's rehabilitation prospects diminished. While acknowledging imprisonment as a last resort and giving weight to community-based sentencing, he found that personal deterrence, general deterrence, punishment, and denunciation required actual custody.
• [23] His Honour found nothing especially sinister in the knife possession. After clarification from defence counsel that the knives had been returned following police education, he ordered forfeiture only of the drug-related scissors.
• [24] For unlicensed driving, the learned magistrate imposed the minimum one month licence disqualification with no further penalty. He activated the one month suspended sentence imposed on 29 September 2025. For the most serious offence, the "selfie" breach, he imposed six months imprisonment. The remaining offences attracted convictions but no further punishment on totality grounds. The custodial terms were ordered to be served concurrently. Convictions were recorded on all charges.
• [25] A parole release date of 19 December 2025 was fixed, requiring one month of actual custody followed by five months on parole. No variation was made to the domestic violence order. His Honour concluded that the appellant was untrustworthy on suspension and that supervision should occur through parole rather than further suspended sentences. The appellant was taken into custody.
• [26] The appellant appeals on the grounds that activation of the suspended sentence was unreasonable and unjust and that the overall sentence was excessive. The respondent contends that no error is demonstrated and that the sentence reflects a sound exercise of the sentencing discretion
• [27] During the course of submissions, the learned magistrate described the appellant's repeated breaches of the domestic violence orders as showing contemptuous disregard, stupidity, and deliberate defiance, aggravated by taking a "selfie" in breach on the day of a court appearance, warranting a salutary penalty. He noted a pattern with the aggrieved escalating situations (at least the second partner "[the aggrieved has] sent to jail"), acknowledged violence by her toward the appellant, but stressed the order's purpose to prevent danger and that the relationship could not continue. He highlighted the appellant's diminished rehabilitation prospects, recent breached probation, prior imprisonment, and an existing suspended sentence (described as dubious), expressing surprise at the rapid reoffending. He indicated intent to activate the full suspended sentence rather than extend it, as the appellant could not be trusted on suspension. He agreed the breaches of the domestic violence order were the most serious offences, that jail was a last resort but now required for denunciation, as earlier options had failed.
• [28] The learned magistrate commenced his sentencing remarks by noting that the appellant's pleas of guilty were to be regarded as early or timely, particularly for the charges of possessing a knife in public, unlicensed driving, and the initial contravention of a temporary domestic violence order. He indicated that reductions in penalty would accordingly be applied. His Honour then addressed the nature of the offending, emphasising that the domestic violence breaches demonstrated a contemptuous disregard for the court order. He highlighted that the appellant was consciously aware of his wrongdoing, having attended court on 4 November 2025 with the intention of seeking a variation to allow contact with the aggrieved, which was unsuccessful. Shortly thereafter, within hours, the appellant and the aggrieved took a selfie together in direct violation of the order. The learned magistrate found no compelling reason for this act beyond "affairs of the heart," deeming it deliberately provocative and a wilful breach.
• [29] In considering the appellant's history, his Honour observed no prior domestic violence convictions, and he placed no weight on old violence-related entries from decades ago. However, he found the appellant's ongoing drug use highly relevant, noting that as a mature man, the appellant had been given multiple opportunities for rehabilitation but had refused them. He expressed concern over the community's attitude toward converting illicit cannabis use into medicinal prescriptions without addressing underlying needs or potential harms, pointing out that the appellant had not even pursued such a script and continued using. Regarding the driving history, the learned magistrate described it as "not great", with the repeat unlicensed driving charge stemming simply from the appellant's failure to renew his licence after a disqualification ended in January 2025. He characterised the appellant's mindset as a delusion that his personal beliefs could override court orders without consequences, a view that would no longer be tolerated.
• [30] His Honour noted that the appellant was on a suspended sentence for drug possession and had committed another such offence, escalating further with deliberate domestic violence breaches. As a mature man, the appellant's prospects for rehabilitation appeared diminished to him, though he acknowledged that imprisonment is a last resort for all charges and should preferably be served in the community, a factor he weighed significantly. Nonetheless, he stressed the need for substantial personal deterrence, general deterrence, proportionate punishment, and community denunciation of such behaviour.
• [31] The learned magistrate found nothing especially sinister in the knife possession but initially considered forfeiture. Upon clarification from defence counsel that the knives had been returned by police after educating the appellant on the law (given his knife collection), and that this was not noted in the police facts, he amended this to forfeit only the drug-related scissors to the Crown.
• [32] Turning to the sentences, for unlicensed driving, the learned magistrate imposed the minimum disqualification of one month from holding or obtaining a licence, with no further punishment. He activated the one month suspended sentence from 29 September 2025. For the most recent contravention of a direction or decision (the selfie incident, which he viewed as particularly contemptuous), he sentenced the appellant to six months imprisonment. For the remaining charges, including another drug-related offence, he convicted the appellant but did not further punish, again citing totality. The six month term was to run concurrently with the activated suspended sentence. Convictions were recorded on all charges.
• [33] The learned magistrate set the parole release date as 19 December 2025, requiring the appellant to serve one month in actual custody followed by five months on parole, aligning with submissions received. In the absence of input from the aggrieved, he made no variation to the domestic violence order. His Honour concluded that the appellant's word was worthless in the court's eyes, rendering any extension of the suspended sentence futile, as he could not be trusted to manage his affairs in the community without reoffending. He opined that community supervision should now occur via parole, which would have been preferable initially, though he recognised that one month on parole lacks practical utility. The appellant had been given a fair chance but had proven untrustworthy with another. With that, he directed the appellant to be taken into custody and ended the proceedings.
• [34] The appellant now appeals against his sentence on the grounds that the activation of the suspended sentence was unreasonable and unjust and that the overall sentence is excessive, in all circumstances. The respondent opposes the appeal on the basis that the sentence does not demonstrate specific error or otherwise falls outside a sound exercise of the sentencing discretion, such that the sentence imposed was excessive.

Did the learned Magistrate err by activating the whole suspended sentence?

• [35] The appellant argues that activation of the suspended sentence was unreasonable and unjust and that the overall sentence is excessive.
• [36] Pursuant to ss 146 and 147 of the Penalties and Sentences Act 1992 (Qld) when dealing with a breach of a suspended sentence, the court must make an order the offender to serve the whole of the suspended imprisonment unless it is of the opinion that it would be unjust to do so (s 147(2)) and must state its reasons for that opinion (s 147(4)).
• [37] Section 147(3) prescribes that in deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment, the court must have regard to:

"(a) whether the subsequent offence is trivial having regard to:

(i) the nature of the offence and the circumstances in which it was committed; and

(ii) the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment; and

(iii) the antecedents and any criminal history of the offender; and

(iv) the prevalence of the original and subsequent offences; and

(v) anything that satisfies the court that the prisoner has made a genuine effort at rehabilitation since the original sentence was imposed, including, for example -

(A) the relative length of any period of good behaviour during the operational period; and ...

(vi) the degree to which the offender has reverted to criminal conduct of any kind; and

(vii) the motivation for the subsequent offence; and

(b) the seriousness of the original offence, including any physical or emotional harm done to a victim and any damage, injury or loss caused by the offender; and

(c) any special circumstance arising since the original sentence was imposed that makes it unjust to impose the whole of the term of suspended imprisonment."

• [38] It is difficult to discern the learned magistrates' explicit consideration of the factors, especially the proportion between the culpability of the offender for the subsequent offence and the consequence of activating the whole of the suspended imprisonment, in deciding whether it would be unjust to order the offender to serve the whole of the suspended imprisonment. However, it is tolerably clear that the learned magistrate did have to apply elements of the "unjust" test, albeit with some robustness, annoyance and distrust of the appellant's intention to obtain prescription cannabis and his capacity to continue unsupervised in the community.
• [39] During the course of submissions, the learned magistrate highlighted the appellant's diminished rehabilitation prospects, recent breached probation, prior imprisonment, and an existing suspended sentence, expressing surprise at the rapid reoffending. He indicated intent to activate the full suspended sentence rather than extend it, as the appellant could not be trusted on suspension. This was exposed in this exchange with the prosecutor:

"SGT O'SHEA: - - - my submission, your Honour, that that suspended sentence could be extended - - -

HIS HONOUR: I don't think I'll be doing that, bluntly.

HIS HONOUR: But that's certainly a valid submission to - - -

HIS HONOUR: - - - be made. I - Mr Kent can't be trusted to look after his own interests ..."

• [40] The appellant argues that the learned magistrate had a closed mind to extending the operational period from the moment that he rebuffed the prosecutor's submission that the operational period could be extended.
• [41] The appellant's original offending, the subject of the Suspended Sentence imposed 29th September 2020, was possession of 3 grams of cannabis. The breach offence for possession of 1 gram of cannabis and use of drug utensils was committed some 70 days after the original sentence. It is unclear whether other breach offending is related to his drug dependency. The appellant has a history of long-term use of illicit drugs, and his solicitor submitted that he may be a candidate for medical cannabis. But this was not the only breach offending, which includes all but the first charge.
• [42] During his remarks, the learned magistrate addressed the nature of the breach offending, emphasising that the domestic violence breaches demonstrated a contemptuous disregard for the court order. He highlighted that the appellant was consciously aware of his wrongdoing, having attended court on 4 November 2025 with the intention of seeking a variation to allow contact with the aggrieved, which was unsuccessful. Shortly thereafter, within hours, the appellant and the aggrieved took a selfie together in direct violation of the order. The learned magistrate found no compelling reason for this act beyond "affairs of the heart," deeming it deliberately provocative and a wilful breach. His Honour found the appellant's ongoing drug use highly relevant, noting that as a mature man, the appellant had been given multiple opportunities for rehabilitation but had refused them. He expressed concern over the community's attitude toward converting illicit cannabis use into medicinal prescriptions without addressing underlying needs or potential harms, pointing out that the appellant had not even pursued such a script and continued using. He characterised the appellant's mindset as a delusion that his personal beliefs could override court orders without consequences, a view that would no longer be tolerated. His Honour noted that the appellant was on a suspended sentence for drug possession and had committed another such offence, escalating further with deliberate domestic violence breaches. As a mature man, the appellant's prospects for rehabilitation appeared diminished to him, though he acknowledged that imprisonment is a last resort for all charges and should preferably be served in the community, a factor he weighed significantly. Nonetheless, he stressed the need for substantial personal deterrence, general deterrence, proportionate punishment, and community denunciation of such behaviour. His Honour concluded that the appellant's word was worthless in the court's eyes, rendering any extension of the suspended sentence futile, as he could not be trusted to manage his affairs in the community without reoffending. He opined that community supervision should now occur via parole, which would have been preferable initially, though he recognised that one month on parole lacks practical utility. The appellant had been given a fair chance but had proven untrustworthy with another.
• [43] It seems to me that there was sufficient evidence to show that it was not unjust for the appellant to serve the whole of the suspended imprisonment because by comparison, the breach offending is not relatively trivial in that, although individually minor, the nature and circumstance so of the breach offending was significant, and a reversion to drug offending of a similar kind albeit of less seriousness. It was open and proportionate for the learned magistrate to activate the whole suspended sentence.
• [44] For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by allowing erroneous or irrelevant matters to guide or affect him, harking to the appellant's poor efforts with unsupervised rehabilitation, reoffending and failing to take into account some material considerations by undertaking the comparative process to determine whether it was unjust to activate the suspended sentence. But having done so here, it seems to me that it is not unjust to activate the entirety of the 1-month suspended sentence, given the appellant's relatively serious breaches of the suspended sentence, including repeated drug offending.

Is the sentence otherwise excessive as falling outside the permissible, having regard to comparable cases?

• [45] The appellant argues that the overall sentence is excessive because the learned magistrate erred in exercising the sentencing discretion, acting inconsistently with similar cases, failing to consider mitigating factors, and allowing erroneous or irrelevant matters to guide or affect him.
• [46] 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.
• [47] The learned magistrate was referred to Queensland Police Service v KBH [2023] QDC 26, and the parties have referred the court to the comparative cases of Green v Queensland Police Service [2015] QDC 341 and PFM v Queensland Police Service [2017] QDC 210.
• [48] 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 combinations, nature and seriousness of the offending compared to the appellant's offending involving domestic violence, serious assault of police and obstructing police. Ultimately, the appropriate sentence will necessarily depend on the particular circumstances of the offending here and the degree of culpability of the appellant. It is instructive to look at the appellant's particular circumstances and the combination of offences in this case. His offending occurs against a background of drug use and dependency and some disobedience. The gravamen of his offending is found in the contemptuous disregard for the domestic violence order with immediate, direct and text contact with the aggrieved, but there is no violence except that perpetrated on him. The court must also look at the totality of the appellant's criminal behaviour and ask itself what is the appropriate sentence for all the offences, and whether it was just and appropriate pursuant to s 9 of the Act. Matters of personal and general deterrence are particularly relevant, and given the appellant's multiple contraventions of the domestic violence order, the observations in R v Wood [1994] QCA 297 at [5] are also apt:

"Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds both of those who obtain them and of those who are subject to them. Apart from orders of that kind, the ordinary criminal law, operating as it does only after the event, arrives too late to be an effective deterrent. The wrongdoer is liable to prosecution and punishment, but only after the injury has, sometimes with fatal consequences, already been inflicted."

• [49] In KBH, the 43 year old the respondent, KBH, faced four charges of contravening a domestic violence order against his former partner. The offences occurred while he was subject to a 12-month suspended sentence imposed in July 2021 for prior domestic violence order breaches. On 23 July 2021, KBH approached the aggrieved at a football game, asked for a cigarette and money, made multiple attempts to speak despite being told to leave, and used derogatory language (charge 1); he later attended her home uninvited, entered, and waited inside until she called the police and he left (charge 2). On 26 August 2021, he called their child's phone to speak to her, accused her of infidelity and drinking, then attended her residence, entered the yard, and called out before leaving (charge 3). On 3 January 2022, he went to her home for his mother's birthday, having been invited verbally but not in writing as required, overstayed, questioned her about texting, and left when police were called (charge 4). KBH had a significant history of domestic violence order contraventions over the prior two years, with no violence in these instances but persistent disregard for court orders. The Magistrates Court imposed fines totalling $1,000 on 25 March 2022 ($300 each for charges 1 and 2, $200 each for charges 3 and 4). On appeal by the QPS for manifest inadequacy, the District Court allowed the appeal on 16 February 2023, setting aside the fines and re-sentencing KBH to a head sentence of 3 months' imprisonment carried by charge 2 with immediate parole release, and 1 month concurrent for each of the other charges, also concurrent with the activated suspended sentences.
• [50] By comparison here, whilst KBH's offending was committed while on a suspended sentence, it was for a much longer term of 12 months imprisonment for prior domestic violence breaches in contrast to 1 month here for minor drug possession for personal use. The appellant here did message the complainant on multiple occasions over three tranches of offending as well as personal contact with the "selfie", but there is no allegation of him being violent, derogatory, or abusive. It seems that the actual contact was with the cooperation of the complainant, who later became violent toward the appellant. It seems to me that KBH is of no comparative value or assistance.
• [51] In Green, the 24 year old appellant pleaded guilty to contravening a domestic violence order by contacting his partner 60 times by phone over 2 days, aiming to have her withdraw a complaint. This followed an incident on the day before where the aggrieved stabbed the appellant in self-defence during an argument, leading to a temporary protection order. Green had a significant criminal history, including nine prior contraventions of domestic violence orders, including eight against the same woman, and committed the breach offence while on parole from a 15-month sentence imposed in November 2014 for related offences. He had served nearly eight months in custody by the original sentencing date of 9 September 2015. Medical evidence showed that Green had developmental delay, autism spectrum disorder and attention deficit hyperactivity disorder, but there was no causal link to his offending her. The Magistrates Court sentenced him to six months' imprisonment, cumulative on his existing sentence, with parole eligibility on 27 November 2015. On appeal, this court found the sentence excessive due to errors of putting too much weight on criminal history and failing to apply the totality principle. The appeal was allowed, and Green was re-sentenced to three months' imprisonment, concurrent with his existing sentence, with parole eligibility backdated to 9 September 2015, resulting in him having completed his full term by the appeal decision on 27 November 2015.
• [52] By comparison, the appellant here was not sentenced in the context of reoffending on parole, nor any prior history of breaching domestic violence orders. Green only had a single event of reoffending. In contrast, the appellant committed 3 separate contravention offences, which comprised sending texts and having the "selfie" in breach of the contact prohibition, and other offending in excess of 2 days, as well as other species of offending. Green was re-sentenced to three months imprisonment, having regard to, amongst other things, his personal and family circumstances, his medical and psychiatric condition, and matters of rehabilitation, to be served concurrently with his existing sentence. They are not features of this case, although the appellant here has drug dependency and insecure accommodation. The case supports a sentence of up to 3 months' imprisonment for the appellant's offending.
• [53] In PFM, the 51 year old appellant pleaded guilty to contravening a domestic violence order on 26 March 2017 while on parole. The domestic violence order made on 19 November 2015 prohibited him from approaching within 100 meters of his former partner's home except for child contact with prior written consent. The offence involved the appellant arriving unannounced at the aggrieved's house around 10:30 am, a week early for the scheduled holiday time with their 7-year-old son, calling out the child's name and expressing frustration at travelling 2,500 km, before leaving when no contact occurred. There was no violence, aggression, or intimidation. PFM had an extensive criminal history, including 13 prior breaches of domestic violence orders spanning 12 years, mostly involving prohibited contact with the same aggrieved, multiple breaches of court orders (e.g., probation, bail, suspended sentences), drug offences, driving disqualifications, and failure to appear. At the time, he was on immediate parole from a 17 February 2017 sentence of 6 months for a drug offence, plus 3 months cumulative for failure to appear. The Magistrates Court sentenced him on 15 June 2017 to 4 months' imprisonment, concurrent with his existing sentences, with parole eligibility on 25 July 2017. On appeal, the District Court found the sentence excessive due to errors in overemphasising history without proportionality to the low-level offence and failing to properly apply the totality principle in setting parole eligibility. The appeal was allowed, and PFM was re-sentenced to 1 month imprisonment, cumulative on the existing sentence, wholly suspended forthwith for a 6-month operational period. The DVO was extended for 5 years until 15 June 2022.
• [54] Again, there are distinctions between PFM and the appellant who has not reoffended on parole nor has prior offences of breaching domestic violence orders. It seems to me that PFM is more serious than the appellant offending here. The appellant's breach offending comprised sending texts and taking the "selfie", as well as other contraventions and other offences. PFM was resentenced to one month imprisonment, wholly suspended for an operational period of six months, to be served cumulatively with the appellant's existing sentence. In that matter, the re-exercise of the sentencing discretion required moderation for the appellant's efforts of self-rehabilitation, his personal circumstances and the effect of such orders on the balance of orders the appellant was liable to serve. The case again supports a sentence in the order of one to two months imprisonment.

1. Given the numerous and various offences, it is necessary to look at the totality of the criminal behaviour and ask what the appropriate sentence is for all the offending. 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.[13] 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.[14] Even allowing for some uplift adequate to accommodate the overall criminality and moderation for the cumulative sentencing with the activated suspended sentence, I am bound to conclude that the head sentence of six months is an excessive head sentence attaching to the last contravention of a domestic violence order comprising prohibited contact by way of a "selfie" and text messages.[15]

• [56] For these reasons, in my respectful view, whether as a result of these specific matters or generally, the sentence is excessive, particularly in relation to the contravention of the domestic violence order, which fell outside the permissible range.

• [57] Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion cognisant of the matters discussed above.
• [58] 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.
• [59] 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 appellant. His crimogenic needs stem from his disordered and unstable life. He had originally moved to Innisfail to assist his ex-partner, with the stepchildren; she had passed 3 months prior; he was unable support the stepchildren; he was 'couch surfing', in other times he was offered a room, at other times he got assistance for food, he has no family support. In these circumstances, the nature of the penalty, in the form of a fine, community service or probation, are contraindicated, with his ongoing drug use and misuse, re-offending or domestic violence. The gravity of this offending can also be gleaned by the relative maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence, which are important here because the appellant has a demonstrates disregard for court supervision and orders in despairing circumstances. But there are still prospects of rehabilitation to address his drug use, unstable accommodation and unlawful contact contrary to protection orders with parole. Nonetheless, for all offences, it must be borne in mind that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable.
• [60] I have found that it is not unjust that the whole suspended sentence of one month imprisonment should be activated, and it seems to me that that term of imprisonment ought be served cumulatively with the other current sentences for breach of the domestic violence order to show communities denunciation for disregarding court orders, and the breach offending, including domestic violence. In doing so, the court must ensure that the overall sentence is just and appropriate for the totality of the criminal behaviour and not too crushing and disproportionate.[16] In The Queen v Kendrick [2015] QCA 27, Morrison JA (with whom Fraser JA and Henry J agreed) provided a comprehensive analysis of the authorities and distilled the preferred approach, that the sentencing process should involve fixing an appropriate sentence for each individual offence, aggregating them, then determining the extent of concurrency or cumulation, and finally setting an appropriate non-parole period all while ensuring that the ultimate outcome properly reflects the totality of the criminality involved. Having reviewed and considered the aggregate of the appropriate sentences,
• [61] Having approached the sentence this way, the sentence below should be varied to impose one month imprisonment for each of the separate contraventions of domestic violence order and one month imprisonment for the possessing of dangerous drugs; that those sentences and the order for disqualification for driving for a motor vehicle without a licence (repeat offender) should be served concurrently; but the term of imprisonment of one month for the last most contemptuous contravention of domestic violence of one month imprisonment should be served cumulatively with the reactivated suspended sentence.
• [62] I declare that 19 days spent in custody from 20 November 2025 to 28 November 2025 and 9 December 2025 to 18 December 2025, inclusive, in relation to the offending is imprisonment already served under the sentence, and I direct the registrar to inform the commission of this declaration.
• [63] Although immediate parole might have been appropriate at the original sentencing, I do set a parole release date in view of the appellant's plea of guilty, cooperation with the police and prosecution, his criminal history and like offending, the time that he has spent in custody before the sentence, which is likely to continue for alleged further offending pending this appeal, I fix his parole release date as the date of this judgment.

• [64] For these reasons, I make the following orders:

1. Appeal allowed. 2. The sentence and orders of the Magistrates Court made in Innisfail on 20 November 2025 are set aside, and substituted with the following sentence:

(a) The appellant will serve the whole unserved suspended sentence imposed on 29 September 2025 of one month of imprisonment in respect of one charge of possessing dangerous drugs. > > (b) For the following offences the appellant is sentenced as follows: > > > (i) Charge 1 - possession of a knife in a public place or school - a conviction is recorded but not further punished; > > > > (ii) Charge 2 - driving of motor vehicle without a driver licence (repeat offender) - disqualification from holding or obtaining a drivers licence for 6 months; > > > > (iii) Charge 3 - contravention of a domestic violence order - 1 month imprisonment; > > > > (iv) Charge 4 - contravention of a domestic violence order - 1 month imprisonment; > > > > (v) Charge 5 - contravention of a domestic violence order - 1 month imprisonment; > > > > (vi) Charge 6 - possessing dangerous drugs - 1 month imprisonment; > > > > (vii) Charge 7 - possess property suspected of having been used in connection with the commission of a drug offence - a conviction is recorded but not further punished. > > (c) The term of imprisonment for charge 5 will be served concurrently with the terms of imprisonment and orders for charges 2, 3, 4 and 6 but cumulatively with the term of imprisonment for the activated suspended sentence imposed on 29 September 2025. > > (d) The whole of the presentence custody served of 19 days from 20 November 2025 to 28 November 2025 and from 9 December 2025 to 18 December 2025, inclusive, is declared to be imprisonment served under this sentence. > > (e) A parole release date is fixed at 19 December 2025 with conditions of the appellant's parole under s 200 of the Corrective Services Act 2006 (Qld). The appellant is directed to report to the Parole and Probation Office at Cairns within 2 business days from his release from custody.

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].

1. [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.
2. [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].

1. [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.
2. [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] 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.
2. [14] Veen v The Queen [No 2] (1988) 164 CLR 465, 477.
3. [15] R v Cooney [2019] QCA 166.

[16] Mill v The Queen [1988] HCA 70; [1988] 166 CLR 59; The Queen v Crofts [1998] QCA 60; [1999] 1 Qd R 386 at 387 & The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206 at [19].