Lewis v Commissioner of Police [2025] QDC 97

• [18] The circumstances of those offences are that firstly, on 26 September 2024, police saw a car which was earlier reported to be acting suspiciously so they activated their lights and siren to intercept. In response, the car sped away. Evidence later identified the appellant as the driver. He was unlicenced at the time.
• [19] Next, on 7 December 2024, the appellant was seen by police at a service station filling up a car with fuel. They activated their lights and siren to intercept him, and he drove off (Evasion). He failed to pay for the fuel (Stealing), was unlicenced at the time, and the car had false plates on it (Possess tainted property).
• [20] Next, on 5 January 2025, he again filled up a stolen car that he was in with fuel and drove off without paying for it (Stealing). He was unlicenced at the time (Unlicenced driving) and the car had false plates on it (Possess tainted property). Some time later, he was observed by police driving at 82km/h in a 60km/h zone (Speeding). Further, he was directed by police to pull over and he failed to do so, instead driving off (Fail to comply with direction) whilst unlicenced and still in a car with false plates on it (Possess tainted property).
• [21] Two days later on 7 January 2025, a car which had been stolen on 24 December 2024 was found abandoned with the defendant's fingerprints inside it. Further evidence, in the form of CCTV footage demonstrated that the appellant had been driving the vehicle (Unlawful use of a motor vehicle) on the morning of 7 January 2025.
• [22] Finally, the appellant was found by police on the side of a road, and he was taken into custody for questioning. He was found to have diazepam in his possession (Possess dangerous drug).

• [23] The appellant has a significant history of prior offending commencing when he was 18 years of age and recorded across 15 pages on his Criminal History. Included in his history of offending is a conviction for Armed robbery in company for which he was sentenced in August 2014 to 4 ½ years imprisonment suspended after the period he had spent in pre-sentence custody (about one year and five months) for five years. He continued to offend in a serious way whilst on that suspended sentence such that he was jailed in 2015 for further property offences and violence against police. He was also dealt with for breaching his suspended sentence and probation. The suspended sentence was partly invoked (30 months) and he was resentenced upon his breach of probation (12 months imprisonment) with immediate release on parole.
• [24] Still, that didn't stop him. More offences and more jail followed such that the appellant has shown himself to be a persistent offender, and despite many occasions of court appearances and various orders designed to support him to change his ways, he has continued to offend.
• [25] Of further particular relevance is that in 2021, he was convicted of his first offence of Evasion and sentenced to three months in prison. He had already more than served that time, so he was released on the day of sentence. He continued to offend thereafter including an offence of Dangerous driving.
• [26] He was given the benefit of a Drug and Alcohol Treatment Order, but that also failed to address the factors underpinning his offending. He explained to the sentencing Magistrate that he participated in that order during COVID and therefore the options available to him under the order were more limited and he sought for it to be revoked so that he could simply "do the time instead".
• [27] Further offending followed, including a second Evasion offence for which he was sentenced in August 2024 along with other offences to a total of 212 days in custody, which he had already served pre-sentence, so he was given release on that day, together with an order for probation of two years to provide supervision, and support whilst in the community.
• [28] Relevantly, he next appeared in the Brisbane Magistrates Court on 4 April 2024 and was sentenced to 15 months imprisonment (his Criminal History incorrectly records it as 12 months) for ten offences and Breach of probation. By that time, he had been in custody since 26 January 2025, and the 68 days of pre-sentence custody were declared to be time served under the sentence then imposed. He was ordered to be released on parole on 25 June 2025, that is after serving five months of the sentence.
• [29] That then brings him to the sentence hearing before the Richlands Magistrates Court on 9 May 2025, which is the subject of this appeal.

• [30] On that occasion, the appellant entered pleas of guilty to a further 15 offences, broadly of the same type as reflected through much of his criminal history, including, amongst the other offences, 2 further offences of Evasion and an offence of Unlawful use of a motor vehicle.
• [31] He represented himself at the sentence hearing and appears to have been able to express himself relevantly and assertively, even interrupting the sentencing remarks to advance further arguments in support of a more lenient sentence. He pleaded guilty and accepted the facts as they were summarised by the sentencing Magistrate without challenge. He explained that he had entered a drug course and that he recognised that drugs were a problem for him. He expressed insight into the seriousness of the conduct which led to the Evasion offences. He explained that he had a baby due, and he was motivated to make changes so that he can have a meaningful role in his baby's life. He had plans to get work concreting upon his release. Finally, he apologised to the Court and the community and explained that he knew that he had to make changes, or he would continue getting sent to jail.

• [32] The learned Magistrate's approach to the exercise of the sentencing discretion was uncontroversial. He took into account the appellant's plea of guilty. He understood the need to have regard to the totality of the appellant's offending, that is the offending for which he was sentenced on 4 April 2025 as well as the offences he was now being dealt with. They were all committed across a period of time from 5 September 2024 through until his arrest on 26 January 2025 and he explained the need to consider broadly what sentence would have been appropriate had all offences been dealt with at the one time.
• [33] He was of the view that an additional penalty was warranted to reflect the additional criminality involved with the new offences, which were greater in number and involved some more serious conduct than the collective offending for which he was earlier sentenced on 4 April 2025. Consequently, he explained to the appellant that his current parole release date would be extended. It was then that he said this:

"So, you won't be getting out in June. You are going to be getting out at the beginning of October, so that you will have served, ultimately, seven months when you are released, but you will also have longer on parole than you were going to have under the previous sentence."

• [34] A little later in the sentencing remarks he explained this:

"You are only getting another basically about three months longer than you would have done and for the... before you're released on parole, and for the large number of extra charges, that's pretty reasonable, in my view, and in fact, I've shortened it from what it should have been to take into account the totality and the other sentence that was imposed."

• [35] He then went on to impose a sentence of 18 months imprisonment for the offences of Unlawful use of a motor vehicle, the two offences of Evasion and the four offences of Disqualified driving. He explained,

"...I have reduced that from the two to two and a half years that you really should have got for the Unlawful Use, to take into account totality and the fact that those sentences start today. So the - ultimately, it basically means about, what, 20 - about 20 months factoring in the previous - the fact that you have been serving a sentence for two months already."

• [36] He proceeded to impose concurrent terms of six months imprisonment for the two offences of Stealing, the three offences of Possess tainted property and the offence of Possession of drugs. For the Failure to comply with a direction offence and the Speeding, the appellant was convicted but not further punished.
• [37] Finally, he declared 32 days of presentence custody from 7 April 2025 to 8 May 2025 and ordered parole release on 8 October 2025. It is accepted that the presentence custody that ought to have been declared commenced on the day of the previous sentence, that is 4 April 2025, as the appellant remained in continuous custody from 26 January 2025. The period up to 3 April 2025 was declared (68 days) in the sentence imposed on 4 April 2025. The means that the new declaration ought to have included the days from 4 April 2025 and that the appellant has been denied the benefit of those extra three days. That must be corrected.
• [38] Returning then to the actual sentence, it is difficult to follow what exactly was intended by the sentencing Magistrate in the structure of the sentence and unfortunately, some of the maths needs to be unpacked to attempt to understand the penalty imposed.
• [39] The overall sentence imposed was 18 months imprisonment, commencing from 4 April 2025[1]. As already noted, by the time he was sentenced in Richlands, the defendant had been in custody since 26 January 2025, a period of 68 days. The Magistrate seems to have acknowledged this when he referred to the appellant having already served "two months already" in his overall calculation that the appellant was sentenced to an effective total term of "about 20 months".
• [40] For reasons that are not readily apparent (to me), parole was ordered from 8 October 2025. That was clearly on purpose, because the Magistrate told the appellant that he would be getting out "at the beginning of October" earlier in his remarks. The effect of that date will see the appellant serve a total of eight months and 12 days in custody before release on parole. That period bears no apparent connection to what the Magistrate had earlier explained was the intention of his sentence. Firstly, he told the appellant that he would have served "seven months when you are released", and, that he was "only getting basically another three months longer than he would have done" under the earlier sentence. The date the appellant was to be released pursuant to the orders of 4 April 2025 was 25 June 2025. The period from that date to 8 October 2025 is three months and 12 days.
• [41] I accept that these expressions may have been broad generalisations in the context of a busy court, but even leaving the mathematical anomalies to one side, the sentence remains one which is not entirely clear.
• [42] A sentence of 18 months (as part of a total period of 20 months) for this offending is unassailable, and even, given the appellant's antecedents, tending towards the generous side. I also acknowledge that whilst there is a common sentencing practice in Queensland to reflect a plea of guilty and matters in mitigation by a release after one third of the total sentence, it is by no means mandatory.[2] It is well within the sound exercise of the sentencing discretion to order a longer period in custody before release to reflect the particular circumstances of a given case, and to appropriately reflect the relevant sentencing principles, such as, perhaps in this case, personal deterrence and protection of the community. However, the sentencing Magistrate didn't explain that that was what he was doing, nor why, and instead said that he was intending to reflect the mitigating factors by an order for release after seven months. That would have seen release on 25 August 2025, not 8 October. A period of seven months in custody, as part of an overall sentence equivalent to 20 months is still longer, although only slightly, than one third of the total sentence, but given the circumstances here, appropriately so.
• [43] There is no error in such an approach, so long as it can be justified having regard to the relevant principles, and the resulting sentence remains one that is 'just in all of the circumstances". Whilst it was within the discretion of the Magistrate to order a longer period in custody before release, I would have expected him to explain that, and to articulate the reasons as to why. The appellant's long history and the failed attempts by previous court orders to curb his offending conduct suggests that the protection of the community now gains additional prominence in the exercise of the sentencing discretion in this case. In addition, the need for a sentence which has an effect to more powerfully deter the appellant from further offending was warranted. Those reasons alone would, in my view, be sufficient to justify a longer period in custody before being released to parole. However, the length of time to be spent in custody before release must also reflect the application of principle in the exercise of the sentencing discretion, and demonstrably so.
• [44] It remains unclear as to whether the learned Magistrate intended to order parole release after eight months and 12 days had been served, despite him earlier telling the appellant that he would serve seven months before release. However, of more significance in this case is the lack of any articulation of the reasons for so ordering, if it was in fact intended.
• [45] In the circumstances, I have concluded that the failure to articulate any reasons why the parole release date was set at a point eight months and 12 days into the sentence, and that in doing so, the Magistrate contradicted his stated intention that the appellant serve seven months of the sentence before release, demonstrate error in the exercise of the sentencing discretion that warrants correction on this appeal. I have concluded that absent that error, the sentence imposed upon the appellant would have been lesser, and seen the Defendant released earlier to parole.

• [46] The appeal is pursuant to s 222 of the Justices Act 1986 (Qld) ("JA"). Relevantly, s.222(2)(c) provides that where a defendant pleads guilty, they may appeal on the sole ground that the sentence is excessive. An appeal pursuant to s.222 is by way of rehearing on the evidence given in the proceedings before the Magistrate (s.223(1)).

• [47] In Teelow v Commissioner of Police,[3] it was said that:

"It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of 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... On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.[4]

• [48] Further, in McDonald v Queensland Police Service,[5] Bowskill J (as her Honour then was) stated:

"It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate's reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate's view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error."

• [49] In Forrest v Commissioner of Police,[6] Sofronoff P stated:

"...an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case."

• [50] The appellant committed a series of offences involving serious criminal and anti-social behaviour, which disregarded the safety of the community and placed innocent members of the community at risk of serious harm. The offence of Evasion, committed twice by the appellant in this particular series of offences for which he is to be sentenced, is particularly serious and carries a mandatory minimum penalty reflecting the need for a powerfully deterrent sentence. The offences were committed as part of a series of similar offences (although less in number and objective seriousness) for which he was sentenced on 4 April 2025 to 15 months with parole release on 25 June 2025. Had he been sentenced at that same time for all offences, he would have received a more substantial penalty. Whilst it is necessary to look at the overall offending when determining the appropriate level of penalty for the current offences, I conclude that an increased penalty, both as to the head sentence, as well as the time to be served before release on parole is warranted to reflect the additional criminality.
• [51] The appellant is 33 years of age with a significant history of similar offending. He was then expecting the birth of his first child in July, and this has provided a significant incentive for him to change his ways. He had engaged with a drug rehabilitation program and had tangible plans to secure work as a concreter upon his release. He has demonstrated insight into his offending conduct and expressed remorse and a commitment to change his ways, particularly given his new responsibility of fatherhood.
• [52] At the hearing of the appeal, Mr Honnef on behalf of the appellant, read an Affidavit under his own hand containing the content of instructions provided by the appellant of antecedents not placed before the sentencing Magistrate, which he seeks to rely upon in the event of resentencing of the appellant. That course was faintly opposed by the legal representative for the Commissioner of Police as it is fresh evidence and there were said to be insufficient reasons for reliance on material which was available, but not produced, at the time of the original sentence. The appellant represented himself at the sentencing hearing and whilst, as already noted, he demonstrated some ability to advocate for himself, it is unsurprising that he may have not wished to disclose that he had been sexually abused as a child over a long period of time in the open forum of the Richlands Magistrates Court. Further, he has referred his case to the 'redress scheme' which resulted in a negative impact on his mental health in that he had to revisit the memories of that sexual abuse.
• [53] Whilst that unfortunate circumstance might go some way to understanding the disadvantaged start to adult life for the appellant, it cannot, given the lengthy history of persistent offending over many years, overwhelm the need for a penalty which now focusses on the protection of the community. I am satisfied that leave should be granted to rely upon this fresh evidence, and whilst I will take it into account, it can have little impact on the overall penalty that is appropriate in the circumstances of the appellant's case.
• [54] The appellant's child has now been born. He is keen to engage with his child and to participate meaningfully in the child's life. It was reiterated in submissions in this hearing that that fact, not present in the past when the appellant indulged his criminal and anti-social lifestyle, is a significant incentive for him to make positive changes to his life.
• [55] In all of the circumstances of this case, the totality of the offending was sufficiently serious as to justify a sentence of 18 months imprisonment in addition to the proportion of the earlier sentence already served. The context of his concerning history of previous, like offending, suggests the need to protect the community from further offending by him, that his prospects of rehabilitation are more hopeful than tangible, and that a strongly deterrent penalty was called for. Those factors can be reflected in a penalty that would see the appellant serving a greater proportion of the head term than perhaps might have otherwise been the case, before being released, and then with him supervised whilst back in the community on a parole order.

• [56] Consequently, in my review of the whole of the record in this appeal, I have concluded that the sentence imposed in the Magistrates Court on 9 May 2025 by the learned Magistrate was an appropriate penalty, save for the date for release on parole. Instead, I order that the appellant be released on parole on 25 August 2025. That reflects a total period of seven months in custody from the date when he was first taken into custody in relation to this offending, which was on 26 January 2025. It also reflects an additional penalty of two months in custody before release to parole over that which was imposed when he was sentenced on 4 April 2025. The total sentence for all of the offences dealt with at the sentencing hearings on 4 April 2025 and 9 May 2025, is therefore a little over 20 months imprisonment. A penalty of that magnitude appropriately reflects the circumstances of the offending, the pleas of guilty and cooperation and the other matters personal to the appellant, and the relevant sentencing principles.
• [57] In relation to each of the offences of Unlawful use of a motor vehicle, Evasion and Driving without a licence disqualified by a court order, I am satisfied that having regard to the nature of that offending, and the circumstances in which they were committed, and in the context of the history of prior similar offending, that the need to protect the community from the danger that the appellant presents when on the road and in the interests of justice that the appellant is disqualified from holding or obtaining a driver's licence absolutely.

• [58] The appeal is allowed.
• [59] For the offences of Unlawful use of a motor vehicle committed on 7 January 2025 and Evasion at night (26 September 2024 and 7 December 2024), the appellant is sentenced to 18 months imprisonment;
• [60] For the four offences of Driving without a licence whilst disqualified by court order on 26 September 2024, 7 December 2024, and twice on 5 January 2025, 18 months imprisonment;
• [61] For the offences of Stealing and Possession of tainted property on 7 December 2024, the offence of Stealing and two offences of Possession of tainted property on 5 January 2025, and the Possess dangerous drugs on 25 January 2025, the appellant is sentenced to six months imprisonment.
• [62] For the offence of Failing to comply with a requirement to stop and the offence of Disobey speed limit, the appellant is convicted but not further punished.
• [63] Each of those sentences are to be served concurrently with each other and concurrently with the sentence imposed by the Brisbane Magistrates Court on 4 April 2025.
• [64] I declare that the period of time spent in pre-sentence custody from 4 April 2025 to 4 August 2025, a total of 123 days, to be time served pursuant to this sentence.
• [65] I order that the appellant be released on parole on 25 August 2025.
• [66] In relation to each of the offences of Unlawful use of a motor vehicle, Evasion and Driving without a licence disqualified by a court order, the appellant is disqualified from holding or obtaining a driver's licence absolutely.
• [67] Convictions are recorded for all offences.

[1] I intend to proceed now on the basis that that is the appropriate date despite the formal order of pre-sentence custody which will be corrected in due course.

[2] R v HBA [2010] QCA 306

[3] [2009] QCA 84; [2009] 2 Qd R 489 at [4].

[4] Citing Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180-181.

[5] [2017] QCA 255 at [47].

[6] [2017] QCA 132.