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[2025] QCA 198
respondent. Application for leave to adduce evidence refused. Application for leave to appeal against sentence refused.
NAI’s appeal application failed. The Court would not admit a psychiatric report that had been available at sentencing and had already been considered indirectly through another expert’s report. It also found no sufficient basis to disturb the sentence. The sentencing judge could impose cumulative sentences in the circumstances, and the Court considered that the sentence reflected moderation and accounted for totality. The Court also found that the applicant’s voluntary drug use and the serious, escalating nature of the offending limited the mitigating effect of his mental health evidence.
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NAI applied to the Queensland Court of Appeal for leave to appeal against sentence. The sole ground was that the sentence was manifestly excessive. He also sought leave to put a psychiatric report by Dr Schramm into evidence on the leave application. The Court, comprising Mullins P, Hall AJA and Hindman J, refused both applications.
2 cited instruments linked from this judgment.
The sentencing followed guilty pleas to two counts of unlawfully entering a vehicle with intent to commit an indictable offence while armed, one count of unlawfully using a motor vehicle, and 17 summary charges. The principal offences were committed on 6 July 2023. The associated offending included three petrol thefts, driving while disqualified, possession of explosives and drugs, dangerous driving, failing to provide a specimen, and further offences committed in custody ([1], [22]–[27]).
The events on 6 July involved two armed confrontations. NAI approached one complainant with a shotgun, opened the car door and pointed the gun at him while demanding keys. Later, NAI took another complainant’s car while children and teenagers were in it, including a crying four-year-old. He drove away at speed, with two teenage girls still inside, and later drove dangerously on the wrong side of a road towards oncoming traffic and a police car ([22]–[25]). The Court noted that NAI had recently consumed methylamphetamine ([26]).
At the time, he was on Board-ordered parole, having been released on 29 June 2023 and fitted with an electronic tracking device. He removed the device on 3 July. The new sentences were ordered to be served cumulatively on the sentence imposed in January 2023 ([2], [21], [38]). For count 1, the sentencing judge imposed four years’ imprisonment. The sentences on the other offences were lesser and concurrent with that sentence. The judge fixed parole eligibility at 21 January 2027 ([2]–[3]).
NAI’s proposed additional evidence was a 3 April 2023 report prepared for a personal injuries claim. It addressed childhood sexual abuse and related psychological issues. The Court noted that the report had been available at sentencing and had been reviewed by the psychologist whose report was before the sentencing judge ([19]–[20], [32]–[34]).
The Court treated the evidence application and the sentence appeal as related but distinct questions. On the evidence application, it emphasised that a sentence appeal is directed to identifying error, rather than re-litigating sentence ([34]). Dr Schramm’s report was not new in the relevant sense: it existed before the sentencing, had been reviewed by Mr Walkley, and its diagnoses informed his assessment. The report also pre-dated the offences and did not address the applicant’s circumstances at the time they were committed. The Court concluded that it contained nothing additional that could have justified a different sentence ([33]–[34]).
On the sentence ground, the Court considered the statutory sentencing structure. It explained that the dangerous-operation offence with two prior convictions was the only offence for which s 156A of the Penalties and Sentences Act 1992 (Qld) made a cumulative sentence mandatory. The Court referred to the requirement for at least a two-year cumulative sentence for that offence. For the other offences, s 156 left the sentencing judge with discretion to order cumulative sentences. The Court added that the availability of a presentence custody declaration under s 159A differed according to the offence and the existing sentence ([35]).
The sentencing approach was to impose four years for the most serious offence, count 1, cumulatively on the existing sentence, with lesser concurrent sentences for the others. The Court observed that this approach had been advanced at sentencing by the prosecutor and endorsed by the applicant’s counsel, consistently with the approach in R v Nagy ([36]). It did not hold that this was the only possible way to structure the sentences. Rather, it held that the question was whether the structure actually chosen made the sentence manifestly excessive ([39]).
The Court considered the criminal and traffic history, which it described as extensive. The sentencing judge had called it “a truly appalling criminal history and a truly appalling driving history” and characterised NAI as a dangerous recidivist offender ([28]). The Court also regarded the sequence of events as an escalation: the removal of the monitoring device, armed offences, taking a vehicle with young passengers still inside, and later dangerous driving ([38]). It accepted the need to consider the protection of the community, denunciation, and general and specific deterrence, themes also emphasised by the sentencing judge ([29]–[30], [37]).
The Court addressed the mental health material without denying that it was relevant background. It noted evidence of ADHD, PTSD, substance-use disorder and personality pathology, and that childhood sexual abuse had affected NAI ([19]–[20]). But it found little scope for applying R v Verdins because voluntary methylamphetamine use was a direct and immediate cause of the offending. It also referred to s 9(9A), under which voluntary intoxication by alcohol or drugs is not a mitigating factor, and to the risk the recidivist offending created for road users ([37]). The Court concluded that any mitigating effect of the mental health evidence was offset by community protection and other sentencing purposes.
Finally, the Court considered the parole eligibility calculation. Under s 160F, the sentencing judge had to fix a new eligibility date by reference to the period of imprisonment then being served, taking the new sentences into account. The Court described that period as six years, six months and 16 days, and calculated that NAI would serve three years, six months and 16 days after his return to custody before becoming eligible for parole, approximately 54 per cent of the period ([40]). It concluded that, in light of the breach of parole and the aggregate offending, NAI had not shown that the sentences were “unreasonable or plainly unjust” ([40]).
This judgment does not announce a broad new sentencing rule. Its value is principally in applying statutory provisions and cited authorities to a sentence application involving existing imprisonment, mandatory and discretionary cumulation, presentence custody and parole eligibility.
As described by the Court, s 156A required a cumulative sentence for the dangerous-operation offence with two prior convictions. Section 156 supplied a discretionary basis for cumulative sentences on the other offences. The Court’s account of s 159A distinguishes the treatment of presentence custody for the dangerous-operation count from the treatment potentially available for the other offences. For the former, R v Braeckmans constrained a favourable presentence declaration for time spent on remand while the applicant was also serving an existing sentence. For the latter, the same constraint did not necessarily apply, and the decision whether to make a declaration remained discretionary ([35]).
The judgment also illustrates that sentencing structure and the ultimate assessment of excessiveness are not identical questions. The Court acknowledged that the sentences could have been structured differently, but focused on whether the structure used was manifestly excessive ([39]). It treated totality as relevant to the head sentence and considered that the four-year sentence had been moderated because it was cumulative on the existing sentence ([31], [39]).
On mental health and intoxication, the Court applied the statutory rule it identified in s 9(9A) alongside its discussion of Verdins and R v Adam. Its analysis was fact-specific: it connected the applicant’s voluntary methylamphetamine use to the offending and considered the seriousness and recidivist quality of the conduct ([37]). The judgment does not say that mental health evidence is always irrelevant where drugs are involved. It explains why, on this record and for this offending, the Court found little scope for mitigation under the principles it discussed.
The outcome leaves the relevant statutory framework and cited authorities as described and applied in this case. The supplied judgment gives no account of any change in the law following its decision.
At [34], the Court said a sentence appeal is “for the purpose of identifying error in the sentencing and not for re-litigating the sentencing.” In plain English, the leave application was not an occasion simply to have the sentencing exercise conducted again using material that could have been presented at the original hearing.
At [35], the Court distinguished mandatory from discretionary cumulation. Section 156A applied mandatorily to one summary offence, while cumulation for the other offences remained discretionary under s 156. The practical point is that the legal constraints on the sentencing judge were not identical across every count.
At [37], the Court said voluntary methylamphetamine use was a “direct and immediate cause” of the offending and referred to the statutory rule that voluntary intoxication is not a mitigating factor. It nevertheless acknowledged the mental health evidence. The reasoning was that the connection between the voluntary drug use and the offending, along with community protection and the risk to road users, left little room for that evidence to reduce the sentence.
At [39], the Court said the four-year effective head sentence “does reflect moderation” because it was cumulative on the existing sentence. In plain English, the Court viewed the sentence as adjusted in recognition of the fact that the new imprisonment followed an existing term, rather than treating it as an unmoderated four-year addition.
At [40], the Court concluded that NAI had not shown the sentences were “unreasonable or plainly unjust”. That was the Court’s reason for refusing sentence leave, not a general finding about every comparable sentence.
The decision is most relevant where a sentencing appeal involves a combination of mandatory cumulation for one offence and discretionary cumulation for others. It draws attention to identifying the statutory source of each cumulative sentence rather than treating the sentence package as governed by a single rule ([35]).
It is also relevant where an offender is sentenced for new offending committed while on parole or shortly after release, and the new sentence is to follow an existing sentence. The Court considered the timing and nature of the breach, the applicant’s return to custody, the cumulative structure, the total period of imprisonment and the parole eligibility calculation together ([21], [38]–[40]).
The decision may assist where a party seeks to introduce psychiatric material on appeal that was available at sentencing, particularly where another expert had already reviewed and incorporated it. The Court’s reasoning turned on the report’s availability, its indirect use at sentence, its date relative to the offending, and its lack of additional material capable of supporting a different sentence ([33]–[34]).
It may also be relevant to sentencing arguments based on trauma, mental illness and substance use where the court finds voluntary intoxication closely connected to the offending and the offences involve substantial risks to public safety. The judgment’s conclusion depends on the evidence and circumstances it describes, including dangerous driving, armed vehicle offending and a serious recidivist history ([19]–[20], [37]–[38]).
The judgment was delivered on 21 October 2025. The material supplied contains no decisions that post-date it and no information about how later courts have treated it. It would therefore be unsafe to describe it as followed, distinguished or applied by later courts.
Within this judgment, the Court cited several earlier authorities. It referred to R v Braeckmans for the constraint on presentence custody declarations, R v DAB for the discretionary position concerning other offences, and R v Staines in discussing a distinct earlier presentence custody issue ([17], [35]). It referred to R v Nagy as supporting the approach of imposing a sentence for the most serious offence to reflect overall criminality, with lesser concurrent sentences for the remaining offending ([36]). It also cited R v Verdins and R v Adam in discussing mental health and voluntary drug use ([37]).
Those references explain the legal materials on which this Court relied. They do not establish how any later court has treated R v NAI itself.
The judgment does not decide how a sentencing judge should structure every case involving mixed mandatory and discretionary cumulation. It expressly recognises that other sentence structures were possible, while deciding only that the structure used here had not been shown to be manifestly excessive ([39]). Which structure is appropriate in another case will depend on its statutory provisions and facts.
The Court also does not specify a general formula for deciding whether to make a presentence custody declaration for offences where the constraint discussed in Braeckmans does not apply. It says that for the other offences the sentencing judge retained a discretion under s 159A ([35]). The judgment’s assessment is confined to the appeal before it and does not provide a comprehensive checklist for exercising that discretion.
The interaction between trauma-related mental health conditions and voluntary intoxication remains fact-sensitive in this decision. The Court concluded that the evidence had little mitigating scope because methylamphetamine use was a direct and immediate cause of the offending, and because of the public safety concerns ([37]). It did not determine how different evidence about diagnosis, treatment, causal connection, or the role of intoxication would be assessed in another case.
Nor does the decision resolve what additional psychiatric evidence would be sufficient to justify admission on a sentence appeal. The report here was available at sentencing, had been used indirectly, pre-dated the offending and added nothing that could justify a different sentence ([33]–[34]). A materially different record could raise different questions, but the judgment does not decide those hypothetical circumstances.
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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 NAI [2025] QCA 198
PARTIES: R / v / NAI / (applicant)
FILE NO/S: CA No 50 of 2025 / DC No 721 of 2024 / DC No 123 of 2025 / DC No 124 of 2025
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Townsville – Date of Sentence: 14 March 2025 (Everson DCJ)
DELIVERED ON: 21 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 14 October 2025
JUDGES: Mullins P, Hall AJA and Hindman J
ORDERS: Application for leave to adduce evidence refused. Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OF INADEQUATE – where the applicant pleaded guilty to two counts of unlawfully entering a vehicle with intent to commit an indictable offence, while armed, one count of unlawfully using a motor vehicle, and 17 summary charges – where the applicant had an extensive criminal history which included drug offences, stealing and property offences, and several dangerous operation of a vehicle offences – where the applicant also had an extensive traffic history – where the applicant was serving a sentence and was on Board-ordered parole at the time of committing the subject offences – where the offences marked an escalation in the applicant’s offending – where the sentencing judge was required to impose a cumulative sentence and was precluded from making any presentence declarations in favour of the applicant for one of the summary charges – where those constraints did not apply to the other offences for which the applicant was being sentenced – where it was within the sentencing judge’s discretion to impose cumulative sentences – where the sentencing judge had regard to totality issues – whether the sentence was manifestly excessive / Penalties and Sentences Act 1992 (Qld), s 156, s 156A, s 159A, s 160F / R v Braeckmans (2022) 10 QR 144; [2022] QCA 25, cited / R v DAB (2022) 13 QR 217; [2022] QCA 268, cited / R v Staines (2022) 11 QR 872; [2022] QCA 187, cited / R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited
COUNSEL: The applicant appeared on his own behalf / B M White for the respondent
SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 14 March 2025, the applicant who had pleaded guilty was sentenced for two counts of unlawfully entering a vehicle with intent to commit an indictable offence, while armed (counts 1 and 2) and one count of unlawfully using a motor vehicle (count 3) all of which were committed on 6 July 2023. At the same time he was sentenced for 17 summary charges. The summary charges comprised three charges of stealing, three charges of driving without a licence disqualified by court order, one charge of offence in relation to unauthorised and prohibited explosives, one charge of dangerous operation of vehicle with two prior convictions, one charge of fail to provide a specimen of breath for analysis or blood for test on requirement, one charge of wilful damage, one charge of unlawful possession of weapons category A, B or M – firearm used to commit indictable offence, four charges of possessing dangerous drugs, one charge of failing to take reasonable care and precautions in respect of a syringe or needle and one charge of dealing with a prohibited thing.
The applicant was sentenced to imprisonment for four years on count 1 and concurrent sentences of three years and six months for count 2 and 18 months for count 3. He was also given lesser concurrent sentences of imprisonment on each of the 17 summary charges. At the time he committed the offences on 6 July 2023, the applicant was on parole after having been released on Board-ordered parole on 29 June 2023 and fitted with an electronic monitoring tracking device. The sentence that he had been serving at the time he obtained parole was imposed in the Supreme Court at Townsville on 19 January 2023 (the January 2023 sentence). He had pleaded guilty to dangerous operation of vehicle with prior conviction and possessing dangerous drugs in excess of 2 grams. He was sentenced to three years’ imprisonment for the dangerous operation of vehicle and a concurrent term of imprisonment of two years for the drug offence. All sentences imposed on 14 March 2025 were ordered to be served cumulatively on the January 2023 sentence. The applicant was also disqualified from holding or obtaining a driver’s licence absolutely.
By the time the applicant was sentenced, he had 617 days in presentence custody between 6 July 2023 and 13 March 2025 in respect of which the sentencing judge declared that no time was taken to be imprisonment already served under the sentences imposed on 14 March 2025. The date that the applicant will be eligible for parole was fixed at 21 January 2027.
The applicant was represented by counsel and solicitors for his sentencing. He appears for himself on his application for leave to appeal against sentence. The only ground in the application is that the sentence is manifestly excessive. The effect of the applicant’s written submissions is that he wants to argue that six months of presentence custody should be taken into account to bring forward his eligibility for parole date to August 2026. The applicant has also applied for leave to adduce evidence on the sentence leave application. He wants to adduce the report dated 3 April 2023 prepared by psychiatrist Dr Schramm for the purpose of a personal injuries claim the applicant is making in relation to injuries sustained as a result of sexual abuse over a period of two years whilst he was a student at primary school sometime between grades 3 and 7. That application for leave to adduce evidence is opposed by the respondent.
Applicant’s antecedents
The applicant was almost 34 years old when he committed to offences on 6 July 2023.
The applicant’s parents separated when he was a child. His mother re-partnered and the applicant did not have a good relationship with his stepfather. After leaving school, the applicant worked in a variety of labouring jobs but his employment was affected by his periods of imprisonment.
The applicant is the father of three sons. The two elder sons aged 13 and 15 years were from an earlier relationship. At the time of the subject offending, he had been in a relationship with his partner (the partner) for about 10 years and their son was six years old.
The applicant has a very extensive criminal history that commenced from when he was aged 17 years and shows an inability to comply with court orders, many drug offences, stealing and property offences and several dangerous operation of a vehicle offences. The applicant’s traffic history is also very extensive. There are numerous drink driving, unlicenced driving, dangerous driving and disqualified driving offences.
The applicant’s first appearance in the Supreme Court on 19 July 2010 (the July 2010 sentence) was at age 20 years when he pleaded guilty to supply of cannabis to a minor. The applicant had made frank admissions when questioned about a text message on his mobile phone. He was sentenced to a wholly suspended term of imprisonment of 12 months for an operational period of two years and a wholly suspended sentence for a lesser term for the other drug offences to which he pleaded guilty at the same time. It was only a month later that the applicant was sentenced to imprisonment of five months requiring him to serve actual custody of four months for offending that had been committed prior to the July 2010 sentence.
The applicant was dealt with in the Supreme Court on 28 July 2011 for committing the offence of driving without a licence on 20 March 2011 during the operational period of the July 2010 sentence. On that occasion he was sentenced to the rising of the Court.
The applicant pleaded guilty in the Magistrates Court on 21 October 2011 to three counts of enter premises with intent to commit indictable offence (all committed in early April 2011) for which he was sentenced to nine months’ imprisonment with a parole release date fixed after serving three months in custody. He was dealt with in the Supreme Court on 6 December 2011 for committing these offences during the operational period of the July 2010 sentence. The balance of 364 days of the July 2010 sentence was activated and a new parole release date of 6 May 2012 was fixed.
It is not necessary to set out the detail of the numerous subsequent appearances in the Magistrates Court by the applicant. The applicant had seven prior convictions for dangerous operation of vehicle: he was sentenced for two charges on 5 June 2013, two charges each with the circumstance of aggravation of two prior convictions (the aggravated charge) on 8 July 2016, and one aggravated charge on each of 29 August 2016, 6 August 2018 and 19 January 2023. The charge on 6 August 2018 also had the additional circumstance of aggravation of adversely affected by an intoxicating substance. It is relevant to refer in greater detail to the other appearances in the Supreme Court.
Circumstances of offending
The sentencing proceeded on an agreed statement of facts. The offending on 6 July 2023 commenced when the applicant and the partner were in the partner’s father’s Outlander. They put petrol into the vehicle at two service stations and in each case the applicant drove away without paying for the petrol. The first summary charge was for stealing $18.63 and the second summary charge was for stealing $24.39. Police then commenced looking for the Outlander vehicle. The applicant was observed driving when he did not hold a driver’s licence which was the subject of one of the summary charges. The applicant and the partner then stopped the Outlander at another service station where the complainant for count 1 had also parked his car and was in the process of getting out. The applicant approached the complainant armed with a shotgun and opened the driver’s side door and pointed the gun at the complainant. (In oral submissions in this Court the applicant asserted that he did not point the gun at the complainant but the agreed fact before the sentencing judge was to the contrary.) The applicant demanded the keys but the complainant shut the door and sounded the horn. The applicant ran back to the Outlander and sped off.
Shortly after, the complainant for counts 2 and 3 (who was known to the applicant) was having engine difficulties with her Commodore and was pulled over on the side of the road. Her four and 15 year old children were with her. The 15 year old’s girlfriend (aged 16) and their two friends (a girl aged 14 years and a boy aged 15 years) were also in the vehicle. The applicant and the partner pulled the Outlander up next to the complainant and the applicant got out of the Outlander armed with a shotgun. He told the complainant that he was taking her car. The two 15 year olds were out of the car and the two girls had remained in the car. The four year old was crying in the car when the applicant took off. He stopped a few metres up the road and the four year old got out of the car and ran back to the complainant. The applicant took off at speed and the two girls were still inside the car. The applicant drove to a service station in the Commodore and put fuel into the vehicle that cost $19.08 and drove off without paying. That constituted the third summary charge of stealing. The complainant for counts 2 and 3 reported her vehicle stolen. The partner contacted the applicant and police spoke to him and told him to come back.
The partner was arrested by the police and the Outlander was searched. Two .410 cartridges (salt shot) were located that constituted the summary charge under the Explosives Act 1999 (Qld). The applicant continued driving the Commodore around the suburbs of Townsville with the two girls before he drove to a house where police located the vehicle and the girls.
The applicant had left that house about 20 minutes before the police arrived. He was driving a Subaru vehicle (which resulted in the summary charge driving without a licence disqualified by a court order) and was tracked by the police helicopter. He was detected driving on the wrong side of Fulham Road into oncoming traffic (which was the start of the conduct that constituted the summary charge of dangerous operation of vehicle with two prior convictions). He continued driving on the wrong side of the road. He drove the vehicle at speed towards a police car positioned at the intersection of Cambridge and Lillipilli Streets but missed the police car and turned right into Cambridge Street before mounting the gutter and coming to a stop (which ended the conduct that constituted that summary charge of dangerous driving).
Sentencing remarks
“And you clearly are a dangerous recidivist offender who presents a significant risk to public safety as you show a propensity to drive extremely dangerously whilst under the influence of methylamphetamine.”
“Considerations of both personal [and] general deterrence loom large when you behave in such a dangerous manner; taking people’s motor vehicles with a loaded shotgun and driving dangerously while under the influence of methylamphetamine.”
In addition, the sentencing judge noted that the sentences were being imposed to make it clear that the community, acting through the Court, denounced the sort of conduct committed by the applicant and the sentences were also being imposed to protect the community from the applicant as long as reasonably could be done in the circumstances. The prosecutor had referred the sentencing judge to many authorities. The sentencing judge found that R v Mackenzie [2002] QCA 279 and R v Currey [2017] QCA 213 were of most assistance. (Those authorities supported a sentence of up to five years’ imprisonment for the totality of the offending on guilty pleas, before moderation for totality.)
The sentencing judge expressed that cumulative sentences (on the January 2023 sentence) would be imposed in respect of the offending with all the sentences being concurrent with each other and that considerations of totality required moderation of the sentences to be imposed. The sentencing judge identified the aggravating features of the offending (including that the offending only stopped when the applicant was apprehended by police) and that the mitigating feature was confined to the early guilty pleas. The parole eligibility date of 21 January 2027 was one year after the full-time expiry of the existing sentence that had to be completed. The sentencing judge stated that he was not declaring any time in custody, as he had taken it into account in moderating the head sentence that was imposed.
Should leave be given to adduce Dr Schramm’s report?
The applicant seeks to put Dr Schramm’s report into evidence on this application as it provides insight into the trauma and PTSD issues which have affected him and suggests his initial use of illicit substances may have been self-medication to address the memories arising from the abuse experienced at primary school.
The applicant expressed a preference on this application for using Dr Schramm’s report rather than Mr Walkley’s report. The problem for the applicant was that Dr Schramm’s report was available to him for use at the sentencing and he elected not to do so directly. It was instead provided to Mr Walkley who quoted from it and used Dr Schramm’s diagnoses as confirmation for Mr Walkley’s opinion. In addition, Dr Schramm’s report pre-dates the subject offences and therefore does not deal with the circumstances that affected the applicant at the time of the subject offending.
The application for leave to appeal against sentence is for the purpose of identifying error in the sentencing and not for re-litigating the sentencing. It is not in the public interest to permit the applicant to rely now on Dr Schramm’s report, when he could have done so on the sentencing directly and, in fact, did so indirectly through Mr Walkley. There is nothing additional in Dr Schramm’s report that would have justified the imposition of a different sentence. That is sufficient reason for refusing the applicant leave to adduce the report. The copy of the report provided for the application for leave to adduce evidence has some pages missing. It is not necessary to rely on that aspect of the document for the refusal of leave.
Was the sentence manifestly excessive?
Of all the offences for which the applicant was sentenced on 14 March 2025, it was only the summary charge of dangerous operation of vehicle with two prior convictions for which it was mandatory pursuant to s 156A of the Penalties and Sentences Act 1992 (Qld) (Act) for the sentencing judge to impose a cumulative sentence. At the very least, the sentence of imprisonment for a period of two years imposed in respect of that offence was required to be served cumulatively on the sentence the applicant was serving when sentenced. As was recognised before the sentencing judge, R v Braeckmans (2022) 10 QR 144 at [30]-[31] precluded any presentence declaration being made under s 159A of the Act in the applicant’s favour in respect of some of the time spent on remand for the dangerous operation of a vehicle offence at the same time as serving the existing sentence. The same constraint did not necessarily apply, however, to the other offences committed by the applicant where the sentencing judge exercised the discretion to order cumulative sentences pursuant to s 156 of the Act: R v DAB (2022) 13 QR 217 at [18]. It remained a question of discretion for the sentencing judge in respect of those offences whether to exercise that power under s 159A to make any declaration in respect of presentence custody in favour of the applicant.
Consistent with the submissions that had been made before the sentencing judge by the prosecutor that it was open to follow the approach in R v Nagy [2004] 1 Qd R 63 at [39] (which were endorsed by the applicant’s counsel), the sentencing judge imposed a sentence of four years’ imprisonment on count 1 (as the most serious of the offences) cumulative on his existing sentence to reflect the applicant’s overall criminality for all the offending for which he was being sentenced and lesser concurrent sentences on all the other offences.
Accepting there was evidence before the sentencing judge of the mental health issues affecting the applicant arising, in part, from the lack of treatment and counselling either undertaken by, or afforded to, the applicant over the years that may be linked originally to some extent to his being a victim of child sex abuse, there was little, if any, scope in the sentencing for the application of the principles in R v Verdins (2007) 16 VR 269 at [32]. That was because the applicant’s voluntary use of methylamphetamine on 6 July 2023 was a direct and immediate cause of his offending: R v Adam (2022) 10 QR 343 at [40] and [49]-[50]. Under s 9(9A) of the Act, voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor on sentencing. In addition, the recidivist quality of the applicant’s offending which exposed other users of the road to the risk of harm makes it an inappropriate case to recognise any reduction in the applicant’s moral culpability for his offending. Any mitigatory effect arising from the applicant’s mental health was completely offset by the need for protection of the community. Denunciation of the applicant’s conduct and general and specific deterrence also remained relevant sentencing considerations in respect of such recidivist offending.
Orders
Application for leave to adduce evidence refused.
Application for leave to appeal against sentence refused.
R
NAI [2025] QCA 198
(2007) 16 VR 269
Application for leave to adduce evidence refused. Application for leave to appeal against sentence refused.
The applicant committed dangerous operation of a vehicle and adversely affected by an intoxicating substance with two prior convictions on 30 May 2017. On that occasion the applicant drove dangerously on a busy road at about 10.00 am. He drove over a median strip, across two lanes of oncoming traffic and over a traffic island at speed. He crashed into other cars that were stationary on the road at traffic lights. One car spun and the driver of another was injured. The applicant spent six days in hospital being treated for a drug-induced psychosis. He had a significant amount of amphetamine in his system. He had 4.605 grams of pure methylamphetamine in his possession. The applicant pleaded guilty to the dangerous operation of a vehicle and the possession of a dangerous drug with a circumstance of aggravation in the Supreme Court and was sentenced on 6 August 2018 (the August 2018 sentence) to imprisonment of three years for the dangerous driving and 18 months for the possession of dangerous drug. These sentences were concurrent and had an effective start date of 9 July 2018. The parole eligibility date was fixed after 12 months in custody.
The applicant breached his parole for the August 2018 sentence when he committed further offences on 14 January 2021. They were dangerous operation of vehicle with two prior convictions and possessing dangerous drugs (methylamphetamine) with a circumstance of aggravation and related summary charges. The circumstances of the offending were that the police were conducting mobile patrols on a major road in Townsville at 4.30 pm. The police noticed that the applicant was driving a Commodore with no registration plate. The applicant accelerated through the intersection against a red light and sped off. Police activated their lights and the applicant made no attempt to stop. The police terminated their chase when the applicant was travelling over 80 km/h in a 60 km/h area. The police located the Commodore at a service station, when the applicant jumped into the Commodore, reversed it, colliding with a wall behind the vehicle and a parked car. The police car had parked in front of the Commodore to block its path. That driving that caused the damage to both the wall and the parked car constituted the dangerous operation of the vehicle. That aspect of the offending was therefore of relatively short duration and did not directly involve other persons at the service station. The applicant fled in the Commodore but the police eventually apprehended him. The police located a clip seal bag on the applicant that contained 10.36 grams of pure methylamphetamine.
The January 2023 sentencing proceeded on the basis that the drugs were intended for the applicant’s personal use. The applicant appeared on his own behalf on the sentencing. In imposing the January 2023 sentence, the sentencing judge found that the applicant had been held in presentence custody from 14 January 2021 to 18 January 2023 which was 735 days and it was declared that none of that time was imprisonment served under the sentences. Parole eligibility was fixed at the date of sentence of 19 January 2023. The sentencing remarks reveal that the presentence custody certificate showed the full-time expiry of the earlier sentences (which included the August 2018 sentence) was 15 April 2022. (There had been one sentence imposed on the applicant in the Magistrates Court on 14 February 2020 of nine months’ imprisonment that was cumulative on the August 2018 sentence.) The sentencing judge noted that the applicant had spent “a little more than nine months in custody on remand, in effect”.
As the applicant was returned to custody on 14 January 2021 on the day on which he committed the offences in breach of parole for which he was then sentenced on 19 January 2023, there was no time that remained to be served in respect of the August 2018 sentence in accordance with s 209 and s 211 of the Corrective Services Act 2006 (Qld) when the January 2023 sentence was imposed. After the January 2023 sentencing, the applicant was dealt with in the Magistrates Court on 8 March 2023 for several summary charges (including possess shortened firearms) all of which were detected on 14 January 2021 and for which concurrent terms of imprisonment were imposed. A declaration was made in the Magistrates Court that presentence custody between 14 January and 7 March 2023 (53 days) was time already served under those sentences and a new parole eligibility date of 8 March 2023 was imposed.
Strictly speaking, it was open to the sentencing judge in respect of the January 2023 sentence to make a declaration of presentence custody in respect of the period between 16 April 2022 and 18 January 2023 as time already served under the January 2023 sentence on the basis that the applicant was held on remand for the offences committed on 14 January 2021 and was not serving during that period the August 2018 sentence or any prior sentence in respect of which he breached parole on 14 January 2021: R v Staines (2022) 11 QR 872 at [23]-[26].
Even though the sentencing judge declared that none of the time served between 16 April 2022 and 18 January 2023 was imprisonment under the sentences imposed on 19 January 2023, the sentencing judge stated expressly that he was imposing “lower sentences than I would otherwise have done to reflect that you have served a little more than nine months on, effectively, remand, after serving out the 2018 sentences”. The mistaken view of the sentencing judge that the time spent on remand of nine months could not be the subject of a presentence custody declaration as time already served under the January 2023 sentence was mitigated by the sentencing judge taking that period into account in the applicant’s favour in selecting the head sentences and fixing the parole eligibility date on the day of sentence. The applicant did not apply for leave to appeal against the January 2023 sentence.
The applicant was assessed by forensic psychologist Mr Walkley on 6 and 27 February 2025 for the purpose of a report being provided for the sentencing dealing with the applicant’s mental health history, its impact upon the applicant in terms of the offending and the steps proposed by the applicant to deal with those issues to reduce his risk of recidivism. The report dated 3 March 2025 was before the sentencing judge. The report noted the following. The applicant was educated to year 9 and had been diagnosed with Attention Deficit Hyperactivity Disorder whilst at school. The applicant commenced using cannabis about the age of 13 years and amphetamines and methamphetamines at about the age of 17 years. The applicant was sexually abused by a teacher whilst in years 3 to 7 at primary school. He was also sexually abused by a supervisor on a camping trip. Dr Schramm’s report was reviewed by Mr Walkley. Dr Schramm had diagnosed the applicant with ADHD, a learning difficulty with an impaired cognitive capacity, polysubstance abuse, persistent dysphoria, post-traumatic stress disorder and a possible Cluster B personality pathology. The applicant fell within the bottom half of the average classification of intelligence.
Mr Walkley linked the sexual abuse experienced by the applicant as a child to his developing depression and anxiety which he self-medicated by the use of cannabis and then amphetamines. Mr Walkley was of the view that the applicant suffered from ADHD, methamphetamine use disorder which was in remission due to his imprisonment, PTSD and borderline personality disorder with anti-social features. Mr Walkley agreed with Dr Schramm’s opinion that the repetitive and prolonged sexual abuse that the applicant experienced as a very young boy and then as a teenager had a significant impact on him. Mr Walkley noted that a borderline personality disorder is one of the disorders that falls within Cluster B personality pathology. The applicant’s relationship with the partner had been toxic. Mr Walkley was of the opinion that the applicant’s prospects of success in rehabilitating would be limited without significant support.
The applicant’s parole was suspended on 3 July 2023 after the applicant had removed his electronic monitoring device in breach of his parole. (That constituted the summary charge of wilful damage.) As the applicant was sentenced for offences committed whilst on parole, the sentencing on 14 March 2025 had the effect of cancelling his parole for the January 2023 sentence as from 3 July 2023 and the full time expiry date of that sentence became 21 January 2026.
When the applicant was searched, a clip seal bag containing methylamphetamine was located in his pocket which was the subject of a summary charge of possessing dangerous drugs. The applicant told police he had recently consumed dangerous drugs. He was required at the watchhouse to provide a specimen of blood for analysis with which he failed to comply. He was told it was an offence to fail to comply and he again failed to comply and that constituted the summary charge of fail to provide specimen of breath for analysis or blood for test on requirement.
On 3 February 2024, while in custody at the Townsville Correctional Centre, the applicant’s cell was searched and he was found in possession of 0.3 grams of cannabis and approximately 10 strips of buprenorphine which constituted two summary charges of possessing dangerous drugs. He was also found in possession of two cut syringes which constituted the summary charge of fail to take reasonable care and precautions in respect of syringe or needle. There was also a homemade knife/shiv that constituted the summary charge of dealing with prohibited thing (under s 123(2)(a) of the Corrective Services Act 2006 where a prohibited thing includes a knife or a cutting implement). While still in prison on 9 February 2024, the applicant was found in possession of buprenorphine that was the subject of another summary charge of possessing dangerous drugs.
Commencing with the applicant’s removal of his electronic monitoring device on 3 July 2023, the series of offences on 6 July 2023 was an escalation in his offending. Some of the offences involved the possession of a shotgun. Even though the stealing offences were minor, the commission of the two counts of unlawfully entering a vehicle with intent to commit an indictable offence, while armed, in quick succession followed by the unlawful use of a motor vehicle whilst the two teenage girls remained in the vehicle and the subsequent dangerous operation of another vehicle after which the applicant admitted he had recently consumed dangerous drugs required condign punishment.
There were other ways in which the sentences for the applicant’s offending could have been structured other than a straightforward imposition of a cumulative sentence, but the issue on this application is whether the sentence that was imposed was manifestly excessive. In the circumstances of the applicant’s prior criminal and traffic history, the exercise of the discretion for all sentences to be imposed cumulatively on the sentence that was being served at the time of the sentencing was unimpeachable. The effective head sentence of four years’ imprisonment for all the offending for which the applicant was sentenced by the sentencing judge does reflect moderation for being imposed cumulatively on the existing sentence.
Under s 160F of the Act, the sentencing judge was obliged to fix the new date for the applicant’s eligibility for parole by reference to the period of imprisonment that he was then serving, taking into account the sentences imposed for the subject offences. That period of imprisonment commenced on 6 July 2023 on the applicant’s return to custody and was therefore six years, six months and 16 days. The sentencing judge had regard to the period of imprisonment in fixing the parole eligibility date at one year after the completion of the existing sentence. That means that the applicant will serve three years, six months and 16 days after being returned to custody on 6 July 2023 and before being eligible for parole. He will have served approximately 54 per cent of the period of imprisonment until the parole eligibility date. The guilty plea was reflected in the head sentence imposed for the subject offences. Having regard to the egregious breach of parole that commenced the subject offending so soon after the applicant’s release from custody on parole on 28 June 2023 and the aggregation of the offending which followed for which the applicant was sentenced by the sentencing judge, the applicant has not shown that the sentences were “unreasonable or plainly unjust”.