McKenzie v Commissioner of Police & Anor [2025] QDC 86

• [2] These offences were committed at a time when the appellant was subject to probation orders. She was then aged 39 and had a prior criminal history which commenced with an appearance in the Caloundra Magistrates Court on 5 September 2013. Although the next entry is not until October 2021, there are, thereafter, a number of entries, particularly indicative of what was identified in the sentencing proceedings, as an issue in relation to the abuse of illicit substances. Most relevantly, she had been placed on probation on 31 August 2022, for a period of 18 months, in relation to a number of mainly drug related offences committed between March and July 2022. A further period of 18 months probation was then imposed on 23 January 2024, in respect of an offence of trespass - unlawfully enter or remain in dwelling or yard and drug related offending, all of which occurred on 24 November 2022, further drug related offending which occurred in December 2022 and a number of offences of breach of bail condition occurring in October, November and December of 2023.
• [3] It is also necessary to note that subsequently to her further offending on 11 August 2024, on 11 September 2024, for a number of offences of breach of bail condition occurring in August and September 2024, she had been sentenced to terms of two months imprisonment, wholly or immediately suspended for a six-month operational period.
• [4] Quite apart from the further offending occurring in contravention of the probation order made on 23 January 2024, breach action had been commenced by way of complaint made by Queensland Corrective Services, on 1 May 2024, asserting breach by failure to report as directed. In that respect, the appellant also pleaded guilty to the two offences of, respectively, breaching each of the probation orders, by her failure to report as directed on 13 February 2024.[1] In respect of the offence in respect of the order made on 31 August 2022, she was fined $300, in circumstances where that order was no longer extant when she was sentenced. In respect of the more recent probation order made on 23 January 2024, she was also fined $300, for the offence which was the subject of the complaint, that order was revoked and she was resentenced, for most, but not all, of the offences for which that order had originally been made, to terms of two months imprisonment wholly suspended for an operational period of 11 months.

• [5] As to the additional offending, a police investigation of the entry to the premises of Neighbours Aid Ltd, in Howard Street at Nambour between 12.15 am on 9 August 2024 and 12.07 am on 12 August 2024, identified that gift cards, an iPad and charging cords had been stolen and fingerprints matched to those of the defendant were located at the scene. Police attended at the known residence of the defendant and were able to gain access to her room using the manager's master key, locating the gift cards, a silver iPad and a charging cord, as were described as taken.
• [6] Shortly thereafter, police were notified that the defendant had returned to her unit and they engaged with her, so that she voluntarily participated in an interview and admitted entering the building through an unlocked door, with a male person, at 11.00 am on 11 August 2024, and that seven iPads, a laptop, gift cards and charging cords were taken. The defendant further stated that she reattended the location at around 11.00 pm on 11 August 2024 and returned six iPads and the laptop. She described that she was "really high" at the time of committing the offence. It was her admission to returning to the premises which provided the evidence of the commission of the trespass offence.
• [7] In respect of the breaches of the probation orders, the materials understood to have been provided to the Court by and then addressed by the representative of Queensland Corrective Services who appeared before the Magistrate,[2] albeit in what was noted as contextual circumstances of homelessness or at least transience and exposure to domestic violence, noted a substantial and ongoing absence of engagement under both probation orders. From the outset of the order made on 31 August 2022, there had been difficulties with reporting requirements and engagement in directed interventions, including in respect of drug use. A noted difficulty was poor reporting compliance and extending to maintaining contact with the appellant. However and despite the reoffending which resulted in the further probation order on 23 January 2024, no breach action was then taken in respect of the earlier order. The later addendum reports, whilst evidencing some reporting by the appellant and self-reported engagement with Narcotics Anonymous, in December 2024, also noted aspects of failure to report as directed and an ultimate recommendation for resentencing.

• [8] The grounds of appeal were set out in the Notice of Appeal, as follows:

1. b. That the learned Magistrate erred by failing to declare 1 day of pre-sentence custody;
2. c. That the learned Magistrate erred by failing to have regard to the totality principle."

• [9] At the hearing of the appeal, and consequently to material addressed in the respondent's written submissions, the second ground of appeal was not pressed. Also, and as is discussed in detail below, the first and third grounds were largely addressed conjunctively.
• [10] As was foreshadowed in the appellant's written submissions, at the hearing of the appeal leave was sought to amend the Notice of Appeal to include a ground that the Magistrate had erred by not imposing sentences on the balance of offences that were the subject of the discharged probation order. However and in the context of addressing the principles to be applied to the determination of this appeal and particularly in reference to the decision in Chakka v Queensland Police Service,[3] this application for leave was ultimately not pressed.
• [11] In Chakka, the Court of Appeal has addressed the approach that this Court must take in determining an appeal against sentence brought pursuant to s 222 of the Justices Act 1886 and particularly, the application of s 222(2)(c). In the context of noting that s 223 provides that such an appeal is to be by way of rehearing on the evidence given in the proceeding below, it was noted in reference to cited authority that it:

"...has been held to require that a legal, factual or discretionary error to be identified before intervention by an appellate court and the appellate court may substitute its own decision based on the facts and law as they stand at the date of the decision of the appeal."[4]

In this context, the contented construction that no error needed to be identified and that the sole question is whether the sentence is excessive or inadequate, was rejected. It was further observed that:

"A further reason as to why that construction is unlikely to accord with the legislative intention is the fact that given a sentence is the result of an exercise of discretion, it is not limited to a single outcome. It has long been held that appellate intervention is not justified merely because the Court would have exercised the discretion in a different way."[5]

• [12] The conclusion reached in Chakka, as to the identified difficulties of construction of the language used in s 222(2)(c), is that it:

"...permits appellate intervention where an error in the exercise of discretion of the kind recognised by the House v The King is established and the error has resulted in a sentence which is excessive. Similarly, if a sentence is said to be inadequate, it must be established that the error has resulted in a sentence being inadequate."[6]

Specific reference had been made to the principles established in House v The King,[7] in respect of relevantly identifying appealable error in respect of an exercise of sentencing discretion, as follows:

"It is not enough that the judges composing the appellate court consider that, if they had been in the 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 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. It may not appear how the primary judge has reached the result embodied in his 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."[8]

Reference was also made to the recognition in Wong v The Queen and Hili v The Queen,[9] that a ground of appeal that a sentence is manifestly excessive or inadequate is to "the residuary or inferred category of error identified in House v The King, which is premised on the result being unreasonable or plainly unjust". Finally, there is the following summary as to the application of that construction of the legislation:

"[89] Such a construction does not require the appellate judge to undergo an artificial exercise of determining the degree to which the sentence could be said to be excessive, but rather for the judge to be satisfied absent the error, the appellate judge would in all the circumstances have sentenced the defendant to a lesser sentence. Once the appellate judge is satisfied that without the error identified a lesser sentence should have been imposed in all of the circumstances that were before the lower court, the sentence should be set aside and the sentencing discretion re-exercised. That would similarly apply where the sentence is said to be inadequate.

[90] Obviously, if the ground of error raised is that a sentence is "manifestly excessive" or "manifestly inadequate", that two stage process will not be required given the nature of the error raised. Otherwise, the two different types of error in the exercise of discretion would be conflated. The difference in approach adopted in determining whether there is specific error in the course of the sentencing decision, as opposed to considering by reference to the outcome of the sentencing discretion whether it is manifest excessive or manifestly inadequate, was discussed by Hayne J in AB v The Queen.

[91] Thus, while specific error alone is not a sufficient to establish a ground of appeal under s 222(2)(c), it will be sufficient if it is shown to have caused a sentence to be excessive or inadequate..."[10]

• [13] Before moving to discuss what was pressed, in that context, in this appeal, it can be observed that the appellant was correct to not persist with the application for leave to add the further ground of appeal. The transcript of the decision of the Magistrate makes it clear that, for a reason which was not clearly articulated, he did intend to exempt a number of stipulated offences for which the probation order had been made on 23 January 2024, from the imposition of the order effecting wholly suspended terms of two months imprisonment, as was the order made in respect of each of the non-exempted offences for which that probation order had been made.[11] Whilst not made explicitly clear, it may have been that the Magistrate's intention was to resentence upon the exempted offences by way of an order effecting a conviction without punishment. However, whilst such an order should have been pronounced and not for instance just recorded in the records of the Court, what is axiomatic is that any such error in the formulation of these orders, even if it were to be regarded as error in the exercise of sentencing discretion, could not conceivably satisfy any requirement that this has resulted in an excessive sentence. If any such error has occurred and there is any need to correct the record of the proceedings in the Magistrates Court, that might be addressed pursuant to s 188 of the Penalties and Sentences Act 1992.
• [14] Although the written submissions for the appellant contended that "the Magistrate erred by failing to have regard to the totality principle", those and the initial oral submissions were developed as a combination of the first and third grounds of appeal, in the sense of an argument to a conclusion of manifest excessiveness of sentence having regard to the necessity for the application of the totality principle.
• [15] However, there was a later attempt, in oral submissions, of reversion to contention of specific error by failure to have appropriate regard to the totality principle. No such specific error is discernible from the record. First, it may be noted that the reliance of the appellant, for the applicable principle, was upon Mill v R.[12] As discussed in R v Beattie; Ex parte Attorney-General (Qld),[13] the principle is in the first instance recognised in respect of a Court imposing sentence for multiple offences on a single occasion, as follows:

"when ... cases of multiplicity of offences 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."

"[19] The ambit of the totality principle has been extended in at least two ways. The first, which is illustrated by Mill v The Queen, is where an offender commits a number of offences within a short space of time but in more than one State. Upon being sentenced to a term of imprisonment in one State, the offender cannot be sentenced in the other State until he is released from custody under the first sentence. In such a case, it is necessary for the second sentencing judge to consider in aggregate the sentences and if necessary to moderate the sentence then to be imposed. 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".

In respect of the second recognised extension, reference was made to other authorities including Postiglione v The Queen,[14] and R v LAE.[15] It may also be noted that such consideration is consistent with the requirement under s 9(2)(l) of the Penalties and Sentences Act 1992 that:

"In sentencing an offender, a court must have regard to...sentences already imposed on the offender that have not been served".

In Postliglione,[16] the statement of the principle was relevantly as follows:

"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. In Kelly v The Queen, O'Loughlin J, sitting in the Full Court of the Federal Court of Australia, applied the following unreported remarks of King CJ in R v Rossi:

'There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.'

The application of the totality principle therefore requires an evaluation of the overall criminality involved in all the offences with which the prisoner is charged. Where necessary, the Court must adjust the prima facie length of the sentences downward in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

Recent decisions in the Court of Criminal Appeal have extended the ambit of the totality principle. Those decisions hold that, in order to comply with the totality principle, a sentencing judge must consider the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence. The most recent statement to this effect was made by Hunt CJ at CL in R v Gordon:

'When a custodial sentence is to be imposed which will be cumulative upon, or which will overlap with, an existing custodial sentence, 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.'"

• [16] It is discernible form the sentencing remarks of the Magistrate that he was expressly conscious of the overall effect of his orders, in the context of the existing suspended terms of imprisonment and in recognising that the supervision of the appellant under probation was not working, and that he was taking action to set aside that form of supervision which had previously been put in place in expectation of continuing to mid-2025, with what would be a more exacting form of supervision to about that point and then having the effect of the suspended terms of imprisonment in place through to about Christmas 2025.[17]
• [17] The appellant's contention as to manifest excess or an unreasonable or plainly unjust result, was directed at the imposition of the term of six months imprisonment with an immediate release to parole, for the offence of enter premises and commit indictable offence. That contention was directed not at the length of the term but rather at the imposition of imprisonment. Consistently with the submission made to the Magistrate, the contention is that a further probation order ought to have been made, having regard to the identification of the appellants exposure to trauma including domestic violence, drug dependence and experience of homelessness, as factors underlying her offending behaviours and responses to probationary supervision.
• [18] As the Magistrate expressly recognised,[18] in imposing terms of imprisonment he was imposing a sentence recognised to be of last resort and otherwise recognised the concomitant principle of desirability for the appellant to remain in the community. As the respondent contends, the circumstances did lend themselves to the desirability of some ongoing supervision of the appellant but not to any conclusion as to the utility of further probationary supervision. In particular and notwithstanding having regard to the extent of the appellant's co-operation in the investigation of and in dealing with the offending and that it may not have been the most serious example of an offence of enter premises and commit indictable offence, it was correctly noted to have been committed in respect of an organisation involved in providing community assistance and it was appropriate to otherwise note the recidivism whilst on probation and escalation as to type of the appellant's offending.
• [19] As was observed in R v CCU:[19]

"As was said by this Court in R v Jackson and in R v Clarke in relation to the ground of manifest excess:

'To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one "right" penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.'"

In the circumstances, it is not established that the sentence imposed was unreasonable or plainly unjust.

• [20] Accordingly, the appropriate order is that this appeal be dismissed.

[2] See: T1-6. 1-36. Being a Court Report dated 30/04/2024 and two addendum report, respectively dated 20/11/2024 and 21/01/2025,

[3] [2024] QCA 213.

[7] (1936) 55 CLR 499, 504-5.

[8] See: Chakka v Queensland Police Service [2024] QCA 213, [47].

[9] [2001] HCA 64; (2001) 207 CLR 584, {58] and (2010) 242 CLR 584, [58]-[59]; Chakka v Queensland Police Service [2024] QCA 213, [48].

[10] Chakka v Queensland Police Service [2024] QCA 213, [89]-[91]. The omitted citation, at the conclusion of paragraph [90] is: "[1999] HCA 46; (1999) 198 CLR 111 at 159 [128] and 160 [130]. While his Honour was in dissent, the statement was referred to with approval in Kentwell v The Queen (2014) 252 CLR 601 at 615 [35] per French CJ, Hayne, Bell and Keane JJ." It may also be noted that the resolution stated in these paragraphs appears to be of no different effect to the principles more generally stated in Kentwell at [35]:

"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."

[12] [1988] HCA 70; (1998) 166 CLR 59, at pp62-63.

[13] [2014] QCA 206; (2014) 244 A Crim R 177, [18]-[19].

[14] [1997] HCA 26; (1997) 189 CLR 295, at 308.

[15] [2013] QCA 189; (2013) A Crim R 96, at [35]-[37].

[16] [1997] HCA 26; (1997) 189 CLR 295, at 308 (citations omitted).

[19] [2022] QCA 92, [51] (citations omitted).