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[2025] QCA 107
respondent. Application for leave to appeal against sentence refused.
1 cited instrument linked from this judgment.
The Court of Appeal majority refused the applicant permission to appeal his sentence. It accepted that the sentencing paperwork misstated the maximum trafficking penalty, but considered that mistake immaterial because the sentencing submissions and comparable cases used the correct 25-year maximum. The majority also concluded that the sentence, including the time before parole eligibility, was not manifestly excessive given the offending and the applicant’s circumstances. Callaghan J dissented, regarding the sentencing process as flawed and the sentence as excessive.
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2,227 words · generated 07/10/2026
HCY sought leave to appeal against sentences imposed after guilty pleas to eight indictable counts: one count of trafficking methylamphetamine, five counts of supplying dangerous drugs, one count of possessing a relevant substance, and one count of contravening an order about information from a digital device. He also pleaded guilty to a related summary charge concerning a mobile telephone, for which he was convicted but not further punished. The Court’s account of the sentence and charges appears at [1].
The trafficking was particularised as occurring between 15 January and 13 June 2022. The evidence identified approximately 14 customers, two of whom resold to others. The quantities supplied ranged from 0.5 g to 7 g, and the applicant had three suppliers. The prosecution could not establish the full turnover, frequency of transactions, or customer base because encrypted applications were used and messages were set to disappear after five minutes. A video on the applicant’s phone showed him holding a large amount of cash and describing it as “a quick $20,000” ([9]).
The sentencing judge imposed four years’ imprisonment for trafficking, six months for each of counts 2–7, and eight months for count 8. Those sentences were concurrent with each other but cumulative on 343 days remaining from an earlier sentence. Parole eligibility was fixed for 24 July 2026, a little over 21 months after sentence ([1]). The Court of Appeal refused leave by a majority: Mullins P gave the principal reasons and Boddice JA agreed ([27], [29]). Callaghan J would have granted leave and allowed the appeal ([30], [39]).
Two grounds were considered. First, the applicant argued that the sentence was manifestly excessive, particularly because he would serve almost 21 months before becoming eligible for parole ([15], [20]). Second, the incorrect maximum penalty in the prosecutor’s statement of facts became an issue during the appeal. The document stated that trafficking carried a maximum of life imprisonment, when the applicable maximum for this offending was 25 years ([2]).
On the maximum-penalty ground, the majority distinguished between the existence of an incorrect statement and whether it materially affected this sentencing decision. The Court accepted that the maximum applicable to the trafficking offence was 25 years and that the statement of facts instead gave life imprisonment ([2], [19]). The applicant relied on the statutory requirement to have regard to the maximum penalty under s 9(2)(b) of the Penalties and Sentences Act 1992 (Qld) ([16]).
The sentencing record mattered to the majority’s assessment. There was no express discussion of the maximum penalty at the sentencing hearing. However, the comparable authorities relied on by the prosecutor concerned trafficking offences for which the maximum was 25 years. Those cases were R v Connolly, R v McLean and R v Staines ([17]). The prosecutor proposed a range of four to five years for the drug offending, and the applicant’s counsel accepted that a head sentence within that range was appropriate. The applicant’s submissions focused particularly on structuring the sentences to avoid the effect of s 156A ([17]).
The majority therefore concluded that, although the written statement was wrong, it was not material in the circumstances. The sentencing submissions and authorities relevant to the range were based on the 25-year maximum that actually applied ([19]). The judgment does not say that an incorrect maximum can never be material. Its conclusion is tied to the specific sentencing record and the parties’ use of authorities concerning the correct maximum.
The majority rejected the manifest-excess ground after considering the sentence in the context of the whole offending and the applicant’s circumstances. HCY was 36 to 37 during the offending, had a history of methylamphetamine use, and trafficked for almost five months ([3], [21]). The Court regarded the sentence for trafficking as at the lower end of the range supported by the authorities before the sentencing judge. It also considered the four-year trafficking sentence as reflecting the criminality of the offending as a whole ([21]).
The majority identified several aggravating features. The trafficking took place while HCY was under parole supervision, which the sentencing judge had treated as a significant aggravating factor ([11], [22]). The supply offending continued after the police search that marked the end of the trafficking period for count 1, slightly increasing the criminality beyond that attributable to trafficking alone ([22]). The applicant’s earlier criminal history and substance-abuse issues were also part of the sentencing context ([3]–[5], [21]).
Mitigation included an early guilty plea, cooperation with the administration of justice, delay before sentence, and signs of rehabilitation during that delay ([11]–[12], [23]). The Court observed that the delay had also allowed the applicant to demonstrate rehabilitation and remain offence-free during the relevant period ([23]). The majority further noted that the count 8 sentence was concurrent rather than cumulative, which benefited the applicant, with reference to Ross v Commissioner of Police and R v Wilson ([21]).
Finally, the majority addressed the cumulative effect of the outstanding sentence and the time before parole eligibility. Just over half of the period to be served before eligibility was attributable to cancellation of the earlier parole order. The sentencing judge had considered that consequence, and the majority treated the cancellation as following from the decision that the seriousness of trafficking while on parole precluded a wholly suspended sentence ([25]). The majority also referred to s 160F of the Penalties and Sentences Act 1992 (Qld), explaining that parole eligibility related to the period of imprisonment rather than simply the last sentence imposed. In that overall context, it held that the almost 21-month custodial component was not manifestly excessive ([25]).
The judgment describes the applicable trafficking maximum as depending on when the offence was committed. The life maximum applied only to trafficking offences committed on and from 2 May 2023. Because HCY’s trafficking period was 15 January to 13 June 2022, the maximum that applied was 25 years’ imprisonment ([2]). The judgment therefore illustrates the importance, in this case, of identifying the offence date before stating the applicable maximum.
The majority applied the material-error approach reflected in R v Kelly [2018] QCA 307. Mullins P recounted that Kelly involved a sentencing judge being told that the maximum penalty for all counts was 14 years, although the maximum for two counts was 12 years. Kelly held that a misapprehension of the maximum could be a material error vitiating the sentencing decision ([18]). The majority did not reject that proposition. Instead, it found that the misstatement was not material on the particular record before it, where the relevant sentencing authorities and proposed range concerned the correct 25-year maximum ([17]–[19]).
Callaghan J took a stricter view of the process. He reasoned that the sentencing judge either accepted the incorrect statement or failed to consider the applicable maximum at all. In his view, the first possibility meant the law had been wrongly presented and applied; the second meant a statutory requirement had not been met ([31]–[34]). He considered the fact that the sentencing submissions referred to cases with a 25-year maximum insufficient to excuse the apparent breach of a compulsory requirement ([33]). This is a dissenting analysis, not the Court’s binding disposition.
The judgment does not announce a new general rule about every sentencing error involving a maximum penalty. The majority’s decision is expressed as a conclusion about materiality “in the circumstances” ([19]). Nor does the judgment alter the statutory parole framework. It applies the existing provisions identified in the reasons, including ss 9(2)(b), 156A and 160F of the Penalties and Sentences Act 1992 (Qld), without setting out a comprehensive interpretation of those provisions.
At [19], Mullins P states that “the misstatement in the prosecutor’s written submissions as to the maximum penalty was not material in the circumstances of the sentencing of the applicant.” In plain English, the paperwork contained the wrong maximum, but the majority was not persuaded that the mistake affected the sentencing decision in this particular case. The reason was that the sentencing comparison and proposed range were based on offences carrying the correct 25-year maximum ([17]–[19]).
At [21], the majority says that the four-year sentence for trafficking was at the lower end of the range supported by the authorities placed before the sentencing judge. This does not mean that the judgment sets a general four-year benchmark. It describes how this sentence compared with the authorities relied on in this case and sits alongside the Court’s assessment of the particular offending.
At [25], Mullins P concludes that “the custodial component of almost 21 months before the applicant is eligible for parole did not make the sentence manifestly excessive.” The Court reached that conclusion after considering how much of the period arose from the outstanding sentence, the seriousness of offending while on parole, the totality argument, and the statutory parole-eligibility framework.
Callaghan J’s competing view is captured at [32]: “The inescapable inference is that, for one of those reasons or the other, the proceedings were flawed.” In plain English, the dissent considered that the sentencing process could not be treated as sound if the wrong maximum was either used or not considered. His Honour also considered that the sentence was manifestly excessive ([35]–[39]).
At [39], Callaghan J says he would have ordered that HCY “should immediately become eligible for parole.” That was the dissent’s proposed result, not the order of the Court. The operative order remained refusal of leave to appeal ([27]).
The decision is relevant to sentencing appeals where a prosecutor’s sentencing material states an incorrect maximum penalty, particularly where the statutory maximum depends on the date of offending. The decision directs attention to what occurred at the hearing: whether the maximum was discussed, what authorities were used, what range was proposed, and whether the sentencing submissions proceeded by reference to the correct penalty ([17]–[19]).
It is also relevant where an applicant argues that the sentence is manifestly excessive because the custodial period before parole eligibility is substantial. The judgment shows that the majority considered the source of that period, including the effect of cancellation of an earlier parole order, rather than assessing the period in isolation ([25]). The reasoning also indicates that the circumstances of offending on parole, later offending, sentence concurrency, cooperation, and rehabilitation may form part of the overall assessment ([21]–[25]).
The judgment should not be read as establishing that every incorrect statement of a maximum is harmless if sentencing cases involving the right maximum were cited. That was the majority’s conclusion on this record, while Callaghan J regarded the statutory requirement as compulsory and the process as flawed ([19], [31]–[34]). The differing reasons make the precise procedural history important when comparing this case with another.
The supplied judgment contains no account of later judicial treatment of R v HCY. It was delivered on 20 June 2025, and the text provided does not identify subsequent decisions that applied, followed, distinguished, or criticised it. No conclusion about later treatment can therefore be drawn from this source alone.
The judgment does discuss earlier authorities. It describes R v Kelly [2018] QCA 307 as holding that a misapprehension of the maximum penalty may be a material error, then finds the present misstatement immaterial on the particular facts ([18]–[19]). It also refers to R v Connolly, R v McLean and R v Staines as comparable trafficking authorities relied on at sentence, and to Ross v Commissioner of Police and R v Wilson in relation to the sentence for the device-information offence ([17], [21]). R v Degn is mentioned in connection with the applicant’s totality submission ([25]). The judgment does not provide a broader treatment of those authorities beyond those specific uses.
The majority’s materiality conclusion leaves a practical question about how a sentencing record should demonstrate that the correct maximum was considered when the written material contains an incorrect figure. The reasons record that the maximum was not expressly discussed, but that comparable authorities and the accepted range related to the correct 25-year maximum ([17]–[19]). The judgment resolves materiality in these circumstances, but does not specify what combination of oral submissions or sentencing remarks would be necessary in a different case.
The reasons also leave open the precise scope of the dissent’s approach. Callaghan J considered that a sentencing court either applied the incorrect maximum or failed to comply with the statutory mandate to consider the correct one ([31]–[34]). The majority did not adopt that analysis. The judgment consequently records a clear disagreement about whether surrounding features of the sentencing process can establish that an incorrect statement was immaterial.
On manifest excess, the majority’s conclusion depends on the interaction of several features: trafficking for almost five months, offending while on parole, later supply offences, mitigation, the outstanding 343 days, and the parole-eligibility calculation ([21]–[25]). The judgment does not isolate the weight assigned to each factor or set a general threshold for when a pre-parole custodial period becomes manifestly excessive. Callaghan J’s view that HCY’s circumstances were distinctive enough to warrant earlier eligibility further demonstrates the disagreement on application, rather than establishing a separate majority rule ([37]–[39]).
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v HCY [2025] QCA 107
PARTIES: R / v / HCY / (applicant)
FILE NO/S: CA No XX of 2024 / SC No XXX of 2024 / SC No XX of 2024
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Brisbane – Date of Sentence: X October 2024 [Redacted]
DELIVERED ON: 20 June 2025
DELIVERED AT: Brisbane
HEARING DATE: 19 May 2025
JUDGES: Mullins P, Boddice JA and Callaghan J
ORDER: Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of trafficking in the dangerous drug methylamphetamine, five counts of supplying dangerous drugs, one count of possessing a relevant substance, and one count of contravening an order about device information from a digital device – where the prosecutor at sentencing tendered a statement of facts which set out the incorrect maximum penalty for the offence of trafficking as life imprisonment – where the maximum penalty of life imprisonment only applied to trafficking offences committed on and from 2 May 2023 – where the maximum penalty that applied to the applicant’s trafficking offence was 25 years’ imprisonment – where the maximum penalty was neither a matter on which there was any express discussion during the sentencing hearing nor referred to in the sentencing remarks – where the comparable authorities relied upon by the prosecutor related to trafficking offences where the maximum penalty was 25 years’ imprisonment – where the applicant’s counsel accepted the prosecutor’s range of sentences for the trafficking based on these authorities – whether the misstatement as to the maximum penalty was material / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of trafficking in the dangerous drug methylamphetamine, five counts of supplying dangerous drugs, one count of possessing a relevant substance, and one count of contravening an order about device information from a digital device – where the applicant was sentenced to four years’ imprisonment for the trafficking offence, six months’ imprisonment for each of counts 2-7, and eight months’ imprisonment for count 8, with all sentences served concurrently – where the effect of a sentence of imprisonment for the offending resulted in the applicant having to serve the remainder of the sentence for which he was on parole at the date he commenced the trafficking – where the applicant’s eligibility for parole date was fixed about 21 months after the date of sentence – where the applicant submitted the sentence was manifestly excessive due to the custodial component of 21 months – where the applicant was a mature offender with a relevant prior criminal history and had trafficked methylamphetamine for almost five months – where there was cooperation with the administration of justice – where it was a significant aggravating factor that the applicant committed the trafficking offence whilst on parole – whether the sentence was manifestly excessive / R v Kelly [2018] QCA 307, cited / R v Wilson [2023] QCA 132, cited / Ross v Commissioner of Police (2019) 278 A Crim R 159; [2019] QCA 96, cited
COUNSEL: S J Bain for the applicant / M B Lehane for the respondent
SOLICITORS: Wallace O'Hagan Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: The applicant pleaded guilty to trafficking in the dangerous drug methylamphetamine between 15 January and 13 June 2022 (count 1), five counts of supplying dangerous drugs (counts 2-6), possessing a relevant substance 1,4-Butanediol (count 7) and contravening order about device information from digital device (count 8). He was sentenced in October 2024 to imprisonment for four years for count 1, six months’ imprisonment for each of counts 2-7 and eight months’ imprisonment for count 8. He was ordered to be eligible for parole on 24 July 2026 after serving a little over 21 months from the date of sentence. The applicant also pleaded guilty to a summary charge of possess property suspected of having been used in connection with the commission of a drug offence (a mobile telephone) for which he was convicted and not further punished. Each of the sentences was concurrent with the others but cumulative on the unexpired term of a previous sentence imposed on the applicant of which 343 days remained to be served.
There are two grounds on which the applicant seeks leave to appeal. The first is that the sentence imposed was manifestly excessive. The second ground that the sentencing judge erred in proceeding on an incorrect maximum penalty arose as a result of the respondent’s submissions pointing out that the statement of facts (exhibit 4) tendered by the prosecutor before the sentencing judge set out the wrong maximum penalty for the offence of trafficking. The exhibit showed the maximum was life imprisonment when that only applied to trafficking committed after 2 May 2023. The maximum penalty that applied to the sentencing of the applicant for trafficking was imprisonment for 25 years.
Applicant’s antecedents
The applicant was 36 to 37 years old during the offending. From 2014 he had a problem with methylamphetamine use. His dependency escalated after the death of a close relative at the end of 2021. He had a prior criminal history in Queensland and New South Wales. The Queensland history comprised minor property, drug and other offending dealt with in the Magistrates Court generally by fines until a series of offences were dealt with in the Magistrates Court on 5 March 2018. On that occasion the applicant was given probation of 18 months which was subsequently revoked on 14 February 2019 when he was re-sentenced to short periods of imprisonment at the same time he was sentenced to short periods of imprisonment for possess utensils, imposition and contravention of a domestic violence order from which he was released on parole on the date of sentence after having served 28 days in pre-sentence custody. On 5 April 2019, he was given a wholly suspended sentence of four months’ imprisonment for stealing, possessing drugs and unlawful possession of weapons and also fined for minor drug offences.
The most serious entry on his Queensland criminal history was imposed in the District Court on 3 February 2021 when he was sentenced to imprisonment for two years and 10 months for the offence of choking suffocation strangulation domestic relationship that was committed on 25 February 2020. He was released on the day of sentence as a pre-sentence custody declaration was made in respect of 344 days spent on remand. That offence also resulted in the suspended sentence imposed on 5 April 2019 being fully invoked to be served concurrently and for which he was also released on parole on 3 February 2021. He was dealt with in the Magistrates Court on 24 January 2022 for stealing on 20 June 2021 for which he was fined. On 29 August 2022 the applicant was sentenced for possessing the drugs and the utensils located on 12 June 2022 and for wilful damage that had been committed on 25 February 2022. He was fined for these offences and ordered to pay restitution for the wilful damage. The applicant’s New South Wales criminal history dates between 2005 and 2015 and is for minor drug offences, traffic offences and other minor offending which were mainly dealt with by fines.
The report from Community Corrections dated 1 October 2024 in respect of the applicant’s response to supervision under parole between 3 February 2021 and 24 December 2022 was mixed. He was identified as having rehabilitation needs in the areas of employment, substance abuse, mental health and as a domestic violence perpetrator. He attended courses to address his substance abuse and domestic violence behaviours and engaged with the in-house psychologist to address mental health issues. Four urinalysis tests between 29 April 2021 and 23 November 2022 all had presumptive positive results for benzodiazepine, methamphetamine, cannabis and amphetamines. The further offending he committed for which he was dealt with in court on 24 January and 29 August 2022 was noted but no formal action was taken in respect of his parole order. (Even though this report is dated after the applicant was charged with trafficking, it can be inferred that it was written without consideration of the trafficking charge for which he was not charged until at least 12 January 2023 which was after he was discharged from the parole order.)
Circumstances of the offending
On 8 June 2022 the police seized the mobile phone of one of the applicant’s associates (the associate). When that was examined, messages between the applicant and the associate were located in relation to supplying dangerous drugs. As a result, on 12 June 2022 the police executed a search warrant at a unit where the applicant resided on occasion. The police found some methylamphetamine, drug related items and a mobile phone. The possession of the methylamphetamine and drug related items were the subject of summary charges dealt with on 29 August 2022.
The police searched the phone seized from the applicant on 12 June 2022 as well as the associate’s phone which showed that the applicant was trafficking methylamphetamine at street level in the period particularised for count 1 which was approximately five months. The full extent of the applicant’s trafficking, including his customer base, turnover, frequency of transactions and suppliers was not known because of the use of encrypted phone applications where the conversations were set to disappear or delete after five minutes. From what could be ascertained, the applicant had about 14 customers to whom he supplied methylamphetamine and two of those customers onsold to their own customer base. The applicant supplied quantities ranging from 0.5 g up to 7 g. His price for 0.5 g was $200 and for 3.5 g was between $1,000 and $1,100. His price for 7 g was between $1,800 and $2,200. The applicant had three suppliers and would source quantities of methylamphetamine in up to ounce quantities. The applicant’s suppliers supplied the applicant on credit and the applicant would also supply his customers on credit and allowed his customers to pay him electronically. A video located on the applicant’s phone showed him in his car holding a large of bundle of cash and stating that it was a quick $20,000.
On 12 January 2023 the police executed a search warrant at the applicant’s home and located a glass vial containing 30.78 g of colourless liquid in which 1,4-Butanediol was detected (which was the subject of count 7). An Apple iPhone which was the subject of the summary charge before the sentencing judge was seized from the applicant. The police instructed him to provide his passcode. He provided police with the initial access code but a second access code was required and the applicant stated that he could not remember it. Failure to provide the code was the subject of count 8. Each of the supply counts (counts 2-6) was charged as a result of messages located by the police in the part of the applicant’s phone to which access was obtained. Count 2 was the result of the applicant doing acts preparatory to supply alprazolam to another person for an unknown cost. Counts 3-5 which were committed between 1 and 6 January 2023 related either to the supply or acts preparatory to the supply of methylamphetamine. Count 6 was an offer to supply an unknown quantity of methylamphetamine to another person on 9 January 2023. The applicant was charged with count 1 when he was charged with counts 2-8. The supply counts concerning methylamphetamine were committed after the period which was particularised for the trafficking count.
Sentencing remarks
In addition to summarising the applicant’s antecedents and the circumstances of the offending, the sentencing remarks included the following. It was an early plea of guilty. The delay in the sentencing was taken into account. The applicant demonstrated some capacity or intention for rehabilitation in the period of the delay in bringing the matter on for sentence during which he had been on bail. Because the trafficking was committed whilst the applicant was on parole, the sentencing judge noted that, if the applicant were sentenced to imprisonment (other than wholly suspended imprisonment), the parole would be cancelled as of 16 January 2022 and the applicant would be liable to serve 343 days and any sentence imposed on the trafficking must be served cumulatively on that period of 343 days. Although the sentencing judge took that requirement into account, he noted that it did not mean there was an automatic discount in the sentence on that basis alone. The trafficking was a different type of offence committed while the applicant was on parole and the requirement for the trafficking offence to be served cumulatively was “simply a consequence of [his] own criminal offending”. It was appropriate that it be taken into account when considering the overall nature and result of any punishment imposed. The trafficking while on parole aggravated the criminality of the applicant’s offending.
It was common ground at the sentencing that a significant mitigating factor was the applicant’s cooperation with the administration of justice.
[Redacted].
[Redacted].
Applicant’s submissions
The effect of the applicant’s submissions in this Court is that, when all factors in mitigation were considered, including the delay before the applicant was eventually sentenced during which the applicant showed positive signs of rehabilitation and was not charged with any further offences, the requirement that the applicant serve 21 months in custody before being eligible for parole meant that the sentence was neither just nor appropriate.
As to the second ground of appeal, the applicant’s counsel conceded that the only reference to the incorrect maximum penalty was in the statement of facts but it had significance as it was mandatory for a court in sentencing an offender to have regard to the maximum penalty prescribed for the offence (pursuant to s 9(2)(b) of the Penalties and Sentences Act 1992).
Was the misstatement as to the maximum penalty material?
The maximum penalty was not a matter on which there was any express discussion during the sentencing hearing and all comparable authorities that were relied on by the prosecutor before the sentencing judge related to trafficking when the maximum penalty was 25 years’ imprisonment. Those authorities were R v Connolly [2016] QCA 132, R v McLean [2021] QCA 70 and R v Staines [2022] QCA 187. The prosecutor before the sentencing judge submitted those authorities supported a range of four to five years’ imprisonment for the drug offending with a further cumulative period of six months’ imprisonment for count 8. In respect of count 8, the prosecutor relied on Ross v Commissioner of Police (2019) 278 A Crim R 159. The applicant’s counsel before the sentencing judge did not demur from any of the authorities relied on by the prosecutor and accepted that a head sentence of four to five years’ imprisonment was appropriate for the applicant’s offending conduct. The focus of the submissions on behalf of the applicant before the sentencing judge was on the structure of the sentences to avoid the effect of s 156A of the Penalties and Sentences Act 1992.
In R v Kelly [2018] QCA 307 the sentencing judge was informed by the prosecutor that the maximum penalty for all counts was 14 years’ imprisonment when the maximum penalty for counts 1 and 2 was 12 years and it was only for count 3 that it was 14 years. In that case, it was held (at [10]) that a misapprehension of the maximum penalty for an offence was a material error which vitiated the sentencing decision and required consideration to be given on appeal to the re-exercise of the sentencing discretion.
As there was no dispute between the parties before the sentencing judge based on applying the comparable authorities for trafficking when the maximum penalty was 25 years’ imprisonment (which was the maximum that applied to the applicant’s trafficking offence), the misstatement in the prosecutor’s written submissions as to the maximum penalty was not material in the circumstances of the sentencing of the applicant. The applicant does not succeed on this ground of appeal.
Was the sentence manifestly excessive?
The applicant argues that the sentence was manifestly excessive due to the custodial component of almost 21 months before being eligible for parole.
It was apparent from the applicant’s criminal history and the Community Corrections’ report that the applicant had a problem with illicit substance abuse when he committed the trafficking offence. He was a mature offender who trafficked in methylamphetamine for almost five months. The sentence imposed for count 1 was at the lower end of the sentencing range supported by the authorities put before the sentencing judge. As the sentence imposed for count 1 reflected the criminality of the applicant for all the offending for which he was being sentenced, he was effectively given a sentence a little less than four years’ imprisonment for the trafficking alone. It was beneficial for him that the sentence imposed for count 8 was imposed concurrently rather than cumulatively. See Ross at [43] and [60]-[63]. Because of the nature of the offence of contravening order about device information from digital device that was the subject of the observation in Ross at [43], the Court in R v Wilson [2023] QCA 132 at [34] noted there were good reasons in the circumstances of the offending in that case for the sentence imposed on that offence to be cumulative on the other sentences.
As the sentencing judge recognised, it was a significant aggravating factor that the trafficking offence was committed whilst the applicant was being supervised under the parole order. The applicant came to the attention of police on 12 June 2022 and was charged with minor drug offences as a result of the search on that date, but that did not have the effect of putting an end to the applicant’s offending conduct. The supply offences (counts 3-7) were committed after that search (which marked the end of the trafficking period for the purpose of count 1) and therefore slightly increased the applicant’s criminality otherwise attributable to the trafficking offence.
The applicant emphasised the delay between being charged and sentenced. That was expressly considered by the sentencing judge but it also benefitted the applicant as he was able to rely on remaining offence free during that period and the activities in which he engaged during that period to demonstrate his capacity for rehabilitation.
[Redacted].
Just over half of the period which must be served by the applicant in custody before being eligible for parole is attributable to the cancellation on 16 January 2022 of the parole order that applied to the choking offence on the commencement of his trafficking offending, as a result of being sentenced for the subject offences. That is a mandatory requirement that followed when the sentencing judge determined that the seriousness of the applicant’s trafficking whilst on parole precluded the imposition of a wholly suspended sentence. The applicant also relies on the totality principle to submit that the sentence imposed on him was “crushing” in its effect, as to call for intervention in reliance on (2021) 7 QR 190 at [11]. The effect of the sentence for the subject offences being cumulative on the outstanding period the applicant had to serve in respect of the choking offence was considered by the sentencing judge and the date fixed for the applicant’s eligibility for parole was approximately one-third of the period of imprisonment. That could not be said to be out of proportion for a sentence imposed after a guilty plea and taking into account the requirement that eligibility for parole must relate to the period of imprisonment rather than the last sentence imposed on the applicant: s 160F of the . When balancing the mitigating factors with the aggravating factors, the custodial component of almost 21 months before the applicant is eligible for parole did not make the sentence manifestly excessive.
Order
The applicant has not succeeded on either ground. The order which should be made is: Application for leave to appeal against sentence refused.
[Redacted].
BODDICE JA: I agree with Mullins P.
CALLAGHAN J: I have had the advantage of reading in draft the reasons provided by Mullins P. I gratefully adopt her Honour’s account of the factual circumstances, the applicant’s antecedents and the procedural history of this matter. I have, however, reached a different conclusion. I would have granted leave and allowed the appeal on both grounds.
A flaw in the process
With commendable fairness Mr Lehane, for the respondent, drew attention to the error which is the basis for ground 2. As Mullins P explains,1 the functionally relevant maximum penalty was mentioned only once in the entire proceeding. That submission was wrong. From that point, only two constructions of events are open. The learned sentencing judge either:accepted and applied that aspect of the law as it was presented to him,2 in which case the proceedings were tainted by error, ordid not consider the applicable maximum penalty at all, in which case there was a failure to comply with a statutory mandate.3
In the case of someone as experienced as the learned sentencing judge, there is comfortable certainty that (b) is not applicable, but it is not necessary to choose. The inescapable inference is that, for one of those reasons or the other, the proceedings were flawed.
It is true that, during submissions before his Honour, reference was made to cases in which the same maximum penalty was engaged. I regard that as an insufficient basis on which to forgive apparent breach of a compulsory requirement.
It is also true that no axiomatic consequence flows from the flaw. However, the applicant’s liberty was at stake and more exactitude should have attended the process. Offenders are entitled to understand that their case has been treated in the same way that Parliament intended for all cases to be treated. There is nothing about this case to remove it from the “general rule”,4 which holds that careful attention to maximum penalties is required and that failure to provide it is a material error. The objective record is one of flawed proceedings; the orders made should be quashed. The sentencing discretion should be re-exercised.
Manifest excess
That process should occur in any event because the sentence imposed was manifestly excessive. Its “plain unreasonableness” is laid bare by reference to the period that the applicant will be required to spend in prison before he becomes eligible for parole.
[Redacted].
The compelling case in favour of early eligibility for parole was supported by a 21 month period of sobriety during which the applicant had re-engaged in employment. The applicant deserves the chance to rejoin the community at a time much earlier than would otherwise have been applicable. He should do so under supervision and expecting the parole authorities to take action if he does not take advantage of this opportunity.
Conclusion
The calibration of a just sentence in this case demands application of relevant principles which were not mentioned by his Honour. This failure is not pleaded as a specific error, and would not of itself amount to one, but the omission may explain how an excessive sentence came to be imposed. In any event, and although I would affirm the head sentence, the applicant’s circumstances were distinctive enough to demand a different approach to the prospect of his early release.
Having regard to the time that has passed since the sentence, I would have adopted Mr Bain’s submission and ordered that the applicant should immediately become eligible for parole. My view is not shared, so it is unnecessary to consider the form of any orders.
See [17]. ↩
Neither his Honour nor any other judge is expected to commit to memory the provisions of any statute, no matter how frequently its terms are rehearsed before them. It is standard sentencing practice in Queensland for the Crown prosecutor to announce relevant maximum penalties and the court is entitled to proceed on the basis those statements are accurate. ↩
Penalties and Sentences Act 1992 (Qld) section 9(2)(b): ↩
R v Kelly [2018] QCA 307 at [9]-[10]. ↩
R
HCY [2025] QCA 107
Application for leave to appeal against sentence refused.
Upon his release from prison on 3 February 2021, the applicant had worked as a gardener and in disability support. He had positive references from his partner with whom he had been in a relationship since mid-2021 and from the mother of a friend who had engaged him as a gardener and was encouraging his aspirations in disability care.
Between July and October 2023, the applicant had undertaken withdrawal and detox support programs with Lives Lived Well. He obtained a mental health care plan from his general practitioner on 25 September 2024. For the purpose of the sentencing, the applicant underwent a urinalysis drug screen on 2 October 2024 that was negative.
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