Spizzirri v Commissioner of Police [2015] QDC 222

Sentencing hearing in the Supreme Court on 12 December 2014

[6] The appellant also has a significant criminal history. Most recently, prior to the sentencing hearing before the Magistrate on 18 March 2015, the appellant had pleaded guilty to one count of producing a dangerous drug (alleged to have occurred between 11 February and 29 April 2011), and two counts of unlawful possession of dangerous drugs (on 28 September 2011) in the Supreme Court, and was sentenced on 12 December 2014 by Justice Peter Lyons.

[7] The appellant was sentenced to 18 months imprisonment (on the count of producing) and 12 and 15 months, respectively, on each of the counts of possession, all to be served concurrently. A period of 163 days (5½ months) was declared as time already served in respect of those sentences, with the remainder of the sentences to be otherwise suspended for a period of 3 years. That left a period of 12½ months to be served (under the 18 month sentence); with the operational period being in place until 12 December 2017.

[8] In addition, the two possession offences were committed during the period of an earlier suspended sentence imposed on 6 May 2011, and that breach was also dealt with by Lyons J. His Honour found there were special circumstances to be taken into account, including the appellant's efforts at rehabilitation (referred to below), as a result of which his Honour ordered the operational period under that earlier sentence to be extended for another year.

[9] The sentence and sentencing remarks of Lyons J were referred to in submissions before the Magistrate, and on this appeal. Some of the matters that were referred to in the lengthy and detailed sentencing remarks of Lyons J included:

• (a) That including the 163 days (5½ months) in custody which was formally declarable under s 159A of the Penalties and Sentences Act, the appellant had actually been in custody for a period of about 1 year and 8 months from 4 September 2012 to 8 October 2014, with about 15 weeks of that time spent in solitary confinement.
• (b) In considering issues of totality, and by reference to the decision of Applegarth J in Callanan and Attendee Z [2013] QSC 342 as to the effect of solitary confinement on a prisoner, Lyons J considered the circumstances in which the appellant had spent time in solitary confinement increased the significance of this period.
• (c) Part of the time the appellant spent in actual custody, including solitary confinement, was the result of his parole being revoked as a result of him receiving two telephone calls from an associate of a motorcycle club (it being a condition of his parole that he have no contact with any such person), which were not prompted by the appellant, were disclosed by him to authorities, and did not concern any criminal activity. In this regard Lyons J referred to "a significant disproportion between the circumstances of the breach and the subsequent custody, including the conditions, to which you were subject".
• (d) That his Honour was aware of the appellant's imprisonment for traffic offences (as well as other offences), including the sentence of 17 months imposed on 2 May 2013, although not it seems the offence committed on 12 October 2014 (the subject of this appeal).
• (e) That in spite of his extensive criminal history, there were "some encouraging signs of attempts at rehabilitation", including:
  • (i) that the appellant had been seeing his general practitioner over a lengthy period of time regarding drug addiction rehabilitation and an anxiety disorder;
  • (ii) that there was some limited support for the GP's belief that the appellant was then drug free, based on two urine screening certificates;
  • (iii) that the appellant had undertaken counselling with a psychologist, and that the psychologist had said he engaged well in therapy and appeared to be motivated to make positive changes;
  • (iv) that he had participated in a relapse prevention program for people who wish to change their use of alcohol and other drugs;
  • (v) although he had breached his parole, the court report from Southport Probation and Parole Office recorded him as being positive, forthcoming with information and accommodating towards the officers of that organisation; and he was regarded as displaying overall a genuine desire to comply with the conditions of the order and willing to engage in intervention. Notwithstanding prior breaches, he was considered suitable for further community based supervision orders, though with strict compliance conditions;
  • (vi) that it was indicated to Lyons J that the appellant wished to move to Melbourne, where he had no history of offending. In that context, it was submitted to Lyons J that the appellant attributed some of his drug problems to the influence of associates on the Gold Coast and wished to distance himself from them. In Melbourne it was said he had good family support and an offer of employment as a labourer (which was supported by a letter from the appellant's cousin, identifying himself as the director of South East Solid Plastering Pty Ltd).
• (f) By reference to all of those things, although Lyons J said they "do not provide convincing evidence of successful rehabilitation", they are "important signs of some maturing and a real attempt by you to put your criminal offending behind you".

[10] The offence the subject of this appeal was committed on 12 October 2014, which it seems was only four days after the appellant was last released from custody (in respect of the periods of custody referred to by Lyons J). He was on bail in respect of the Supreme Court matters; but was no longer on parole in respect of the earlier traffic offences. The sentencing hearing before the Magistrate took place 3 months after the sentence was imposed on the appellant by Lyons J.

[11] Before the Magistrate, counsel for the appellant referred firstly to the circumstances of the offence (that there was no accompanying offence of speeding, drink driving or evading police; that it was only one offence being dealt with; that the appellant cooperated with police and readily admitted commission of the offence; and pleaded guilty). He then referred at some length to the sentencing remarks of Lyons J, as well as to the documents that had been placed before Lyons J.[2] Counsel for the appellant informed the Magistrate that since the hearing before Lyons J the appellant had moved to Melbourne, commenced to work as a renderer for his cousin, was residing with friends in Melbourne, but trying to save up enough money for a bond to rent premises of his own.

[12] In answer to the Magistrate's question "You're not suggesting a fully suspended term of imprisonment is applicable today?", counsel for the appellant submitted, in effect, that he was, and was doing so on the basis that there are a number of matters to be taken into account in the appellant's case, just as they were taken into account by Lyons J in the Supreme Court. It was noted that the Supreme Court proceedings were in respect of offences which carry 15 to 20 year maximum penalties, and where the appellant had a vast array of prior convictions for drug offences; but in the circumstances, Lyons J had been prepared to craft a sentence which allowed for rehabilitation.

[13] In the course of submissions, the Magistrate said: "The sentencing regime does not go backward, as I believe. If you continue to commit the same offence, then the penalty increases until such time as you desist from your inappropriate behaviour." In answer to the Magistrate's question, as to why, having regard to the appellant's history of traffic offences, and actual custodial sentences imposed for those offences, "the sentencing regime today should effectively go backwards and that he should not be serving an actual term of imprisonment", counsel for the appellant referred to R v Aston (No 2) [1991] 1 Qd R 375 at 380-381, where Cooper J referred to the following passages from Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465, firstly, at 476:

"... sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions."

"... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642 at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."

[15] It was submitted that it was necessary to consider the gravity of the offence committed on this particular occasion, and whilst the appellant's background had to be taken into account, that ought not to be such as to disproportionately raise the sentence.[3]

[16] Counsel for the appellant also emphasised the aspects of rehabilitation identified by Lyons J, and in that context referred to R v Molina (1984) 13 A Crim R 77 at 79-80 and Hogon [1987] NTCCA 6; (1987) 30 A Crim R 399 at 403. In Molina the Crown's appeal against a sentence of 5 years imprisonment wholly suspended, imposed on an armed robber, was dismissed. The Court said, at 78-9:

"... the evidence established to [the sentencing judge's] satisfaction that the programme of rehabilitation on which the respondent had then been engaged for some months has a reasonable chance of curing him of his addiction, thus enabling him, with family support, to function as a normal law abiding member of society. On the other hand the probabilities are that a substantial period of imprisonment would leave him with a hopeless future. His Honour said he would 'probably return to drugs and the community may again be hurt in the process'. There was ample expert evidence to justify [the sentencing judge's] conclusions on this subject.

His Honour was very conscious of the unusual nature of the step he was taking and of the uncertainty of success. He described the situation as 'a very rare one', but concluded that 'the community just may benefit by allowing your opportunities of rehabilitation to continue rather than by ordering your immediate imprisonment for a long time'.

This amounted to a finding that the community's interests would probably be better served by the current course of rehabilitation than by placing reliance on considerations of retribution or deterrence. The community would in any event have noted the lengthy sentence imposed on the chief perpetrator of the offence and should be aware of the five years' sentence hanging over the respondent's head.

... in the view of the sentencing judge, the respondent fell narrowly on the side of a line where the community's best interests would probably be served by a strenuous attempt at rehabilitation. It must not be forgotten that a prolonged and rigorous drug rehabilitation programme, followed by a balance of three years of parole supervision, with the ever present threat of imprisonment for any breach of the terms of his bond, is an alternative form of punishment: Anderson (1977) 19 ALR 212 at 217."

"The public interest is not always best served by treating general deterrence as paramount. Where, upon a fair consideration of the evidence in a case, a judge concludes that by not requiring the offender to go to gaol there is sufficient probability that he will become a useful, law-abiding member of society, the public interest may be better served by not sending him to gaol. If the criminal process by its proper procedures can make a real contribution towards the formation of a good member of society, it should, I believe, do so. The chance of that happy result must be a real one based on the evidence.

The gravity of the offence is obviously a major factor. Some crimes are inherently so grave that no likelihood of reform could lead to the conclusion that the public interest would be better served by a non-prison sentence.

This was not such a case ... The trial judge was careful to consider all important relevant factors. He designed a sentence for the special set of circumstances confronting him. His Honour's trust may one day be seen to have been misplaced; or it may be seen to have been wise. No one can now say. But, if he is seen to have been right, the community will have gained a useful citizen and will have been saved the expense of keeping the respondent for some months or years on gaol. The community also has an interest here for a less crassly material consideration: I believe it would regard the rehabilitation of the respondent as desirable in itself.

I should say explicitly that I have been unable to find any error in his Honour's approach to the sentencing of the respondent. It was a very special case. While some judges would, no doubt, disagree with the result, others would not. That merely reflects the personal element in the sentencing function. The respondent has not escaped unscathed. He will remain in peril of gaol for his crime for five years. The objective gravity of the offence is well demonstrated by the sentence of five years' imprisonment. No reasonable person, fully informed of the circumstances of this case, could gain the impression from it that he would be able to trade in heroin with impunity."

[18] For the appellant, before the Magistrate, it was submitted that both of those cases provided for what is described as exceptional circumstances,[4] where the otherwise appropriate sentence would be one of actual incarceration but, because of the attempts at rehabilitation, the court has considered they would err on the side of leniency and allow the person to continue with their rehabilitation in the community. It was submitted that in light of the comments made by Lyons J in December 2014, and the structure of sentence that his Honour imposed, the Magistrate could impose a period of imprisonment, without requiring that actual time be served.

[19] It would appear that the Magistrate viewed the comments made about rehabilitation by Lyons J, in relation to the Supreme Court proceedings, as being indicative of good prospects for rehabilitation in respect of drug offences; as opposed to more generally.

[20] Finally, for the appellant, reference was again made to the fact that he was then living interstate, in relation to the preferred option of a suspended sentence as opposed to a parole release date.

[21] Before the Magistrate, the prosecution emphasised the appellant's traffic history, which it was said showed a total contempt and disregard of court orders and bail conditions. It was said his driving history showed he is a deliberate recidivist, prepared to drive on a whim and regardless of whether he is unlicensed or disqualified from driving. The report from Community Corrections (which was referred to by Lyons J, and which stated, among other things that the appellant appeared to display a genuine desire to comply with the conditions of his orders) was described as "complete fantasy". The prosecution also pointed out that it did not appear Lyons J was aware of the offence on 12 October 2014. The prosecution also, drew a distinction between the appellant's rehabilitation in relation to drugs, which it was submitted was the subject of Lyons J's comments, and rehabilitation in relation to traffic offending, of which it was said there is no evidence of his having done any courses or programs, with the prosecution again referring to "total fantasy in relation to his traffic offending behaviour".

[22] In sentencing the appellant as he did, the reasons given by the Magistrate on 18 March 2015 were as follows:

"Defendant, in your favour today I take into account your plea of guilty, those submissions made to the Court by Mr Kimmins on your behalf, the various authorities which the Court has had a - a chance to consider, the contents of the psychiatric report and your work - your current employment, together with other documents that have been tendered.

You come before the Court as a relatively young person still, with an appalling criminal history and a even more appalling traffic history, which now comprises some eight pages. The offence before the Court today is one of driving whilst disqualified. It's your ninth time before the Court. As I have made mention to your counsel, the - the penalties imposed by Courts very rarely are decreased. If people continue to commit offences of the same type, then the penalty invariably increases unless there is sufficient reason provided to the Court.

The Court has been informed on this occasion that there is no reason why you were driving. It's been suggested by the prosecution that you thumb your nose at authorities; you do what you believe you would like to and you pay little or no regard to the consequences. In relation to the charge whilst driving whilst disqualified I refer to the South Australian decision of Coombe v Douris (1987) 47 SASR 324. The decision of King CJ states as follows for the offence of driving whilst disqualified.

Its seriousness consists in the defiance of the law which it manifests and in the fact that it nullifies the effect of the order of disqualification which is imposed for the protection of the public. The effectiveness of orders of disqualification from holding or obtaining a driver's licence depends upon observance of them by the persons disqualified. If they are treated with contempt and ignored by the persons affected, the orders of the Court designed to deter offenders and to protect the public are rendered ineffective. The ordinary punishment for driving under disqualification must be imprisonment.

You have pleaded guilty today to your ninth offence of driving whilst disqualified, and having taken into account all the circumstances, I am satisfied that the only appropriate sentence today is one of imprisonment. In respect of the charge before the Court you are formally disqualified from holding or obtaining a driver's licence for a period of three years. In respect of the charge, having taken into account those principles set out in the Penalties and Sentences Act, it is the order of the Court today that you be convicted and sentenced to a period of 12 months imprisonment. I propose to fix a parole release date as at the 18th of July 2015. I understand that you intend to reside in Victoria upon your release. That will be a matter for parole authorities."

[23] On this appeal, the appellant points out that the Magistrate's sentencing remarks make no mention of the sentencing proceeding before Lyons J; no reference to the reasons why Lyons J structured the sentence in the way that his Honour did; no reference to the aspects of rehabilitation highlighted by Lyons J; and no reference to s 9(2)(k) of the Penalties and Sentences Act 1992, which requires that the sentencing court "must" have regard to sentences already imposed on the offender that have not been served.

[24] The appellant submits that the Magistrate erred by placing undue emphasis on the repeat offences of a like nature evident in the appellant's traffic history, stressing the importance and inevitability of an increased penalty in this case, notwithstanding being referred to the principles of proportionality discussed in R v Aston (No 2) [1991] 1 Qd R 375. The appellant further submits that the Magistrate erred by failing to adequately consider the totality principle, and failing to give due regard to the appellant's prospects of rehabilitation, particularly in light of the sentencing remarks of Lyons J.

[25] The appellant submits that the Magistrate's discretion miscarried, in particular in so far as he required the appellant to serve a third of his sentence in actual custody, because of the failure to have regard to the sentence imposed on him by Lyons J. In addition, the appellant submits the Magistrate erred in providing for the appellant to be released on parole after serving the 4 months, rather than suspending the remaining period, because the imposition of parole in the appellant's circumstances is not consistent with enabling him to continue his efforts at rehabilitation (which included moving to Melbourne, where he has a job, and family support, and is removed from the poor influence of associates on the Gold Coast).

[26] In opposing the appeal, the respondent submitted that, merely because Lyons J had chosen to emphasise one aspect of the sentencing process, and keeping in mind that his Honour was not made aware of this offence being committed on 12 October 2014, that did not bind the Magistrate to take the same approach. The respondent submitted that, having regard to the detailed submissions made at the sentencing hearing before the Magistrate, notwithstanding those matters were not referred in the Magistrate's sentencing remarks, it is to be inferred that his Honour took into account the sentence imposed by Lyons J, and the matters regarding rehabilitation referred to by his Honour, in imposing the sentence that he did. It was suggested that, bearing in mind that a period of 17 months imprisonment had previously been imposed on the appellant (in May 2013, when he was dealt with for 8 offences), it can be inferred that in dropping the head sentence to 12 months for this one offence, the Magistrate has taken into account all of the matters referred to by his counsel in submissions before him.

[27] The respondent emphasised the number of offences of the same nature committed by the appellant, and the fact that he has continued to commit the same offence over and over again despite significant, and increasing, penalties being imposed. The fact that this offence was committed just 4 days after being released from custody was also emphasised.

[28] Having regard to all the circumstances, the respondent submitted that there was no error in the exercise of the discretion by the Magistrate, in the circumstances of this case. Further, even if there was an error, the respondent submitted that on any resentence, the sentence imposed by the Magistrate was the appropriate one.

[29] The sentence imposed by the learned Magistrate involved the exercise of a discretion, which this court may not interfere with unless an error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505 has occurred. It is not a sufficient basis for this Court to intervene, that this Court considers it might have taken a different course. It must appear that some error has been made in exercising the discretion. If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts, if he did not take into account some material consideration, then his determination may be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

[30] The requirement for a sentencing court to state in open court its reasons for imposing a sentence of imprisonment is contained in s 10 of the Penalties and Sentences Act 1992. As Margaret Wilson AJA observed, in R v Hyatt [2011] QCA 55 at [11]:

"It is desirable that sentencing remarks be succinct, sharply focussed and expressed in a way likely to resonate with the offender, the victim and the public at large. They also have to be able to withstand the scrutiny of appellate courts. The reasons for structuring a sentence in a particular way should ordinarily appear in the sentencing remarks, and a sentencing court may more readily infer error when reasons are not expressed."

[31] There may be circumstances in which it is appropriate to consider exchanges between counsel and the bench, in "amplification of the reasons";[5] although it has been said that "a cautious approach is warranted", since such exchanges are often designed to draw out and test submissions and often are in the nature of preliminary observations.[6]

[32] In my view, the sentencing remarks of the learned Magistrate, even when considered in the light of the detailed submissions at the sentencing hearing, do reveal that error has been made in the exercise of the Magistrate's discretion.

[33] The Magistrate was required, by s 9(2)(k) of the Penalties and Sentences Act 1992, to have regard to sentences already imposed on the offender that have not been served. That provision required the Magistrate to have regard to the sentence imposed by Lyons J in the Supreme Court on 12 December 2014, in considering what sentence ought to be imposed by him. His reasons do not reveal that he did so. In fairness to the Magistrate, counsel for the appellant did not expressly refer to that provision in his submissions before the Magistrate. However, he did refer at some length to the sentencing remarks of Lyons J, and the particular structure of sentence imposed by Lyons J, having regard to the material before his Honour, including as to rehabilitation.

[34] I do not consider it can be inferred, reading the sentencing remarks in light of the submissions, that the Magistrate took the sentence imposed by Lyons J into account, or took into account the various considerations addressed by Lyons J in structuring that sentence, in imposing the sentence that he did on 18 March 2015.

[35] On the contrary, it can more readily be inferred that the Magistrate regarded those comments, in particular regarding rehabilitation, as not relevant to the matter he was dealing with, because of his Honour's comments about the rehabilitation being only in relation to drug offending.

[36] It does not seem correct, in my view, to distinguish between rehabilitation from drug abuse, leading to the commission of drug offences; and rehabilitation more generally from behaviour leading to the commission of traffic offences. What was referred to by Lyons J was an overall change of circumstances of this appellant, including attempts to remain drug free; psychological counselling; moving away from a place where the appellant recognised he was at risk of poor influence from associates; and moving to a place where he would have the benefit of family support and a job. All of those things are conducive not only to, hopefully, avoiding further drug offending and other criminal behaviour in the future, but also avoiding the apparent disregard or contempt for orders of the Court demonstrated by the appellant's repeated driving whilst disqualified offences.

[37] What is reflected in the sentencing remarks is the comment made on more than one occasion by the Magistrate during the sentencing hearing, that if people continue to commit offences of the same type, then the penalty invariably increases unless there is sufficient reason provided to the Court. His Honour said he was satisfied that, taking into account all the circumstances, the only appropriate sentence was one of imprisonment. There is no mention, in the sentencing remarks, of the reasons why the Magistrate decided that a period of 4 months actual custody was required, despite the remarks of Lyons J, and that a parole release date ought to be fixed after that time, as opposed to suspension of the remaining term.

[38] In light of the sentence imposed by Lyons J in December 2014, and the arguments put forward on behalf of the appellant, in the absence of any reasons being given, it is open to infer that the Magistrate failed to properly take those matters into account, failed to comply with s 9(2)(k), failed to address considerations of totality (whether under the common law principles, or more generally by reference to the requirement, under s 9(1)(a), to impose a sentence that is just in all the circumstances) and, accordingly, erred in the exercise of his discretion.

[39] In so far as it was submitted by the respondent that it is to be inferred the Magistrate did take those matters into account, in "reducing" the head sentence from the previous 17 months imposed in May 2013, to 12 months, I do not accept that as reasonable. The period of 17 months imposed in May 2013 was in circumstances where the Magistrate on that occasion was dealing with 8 offences. This was a single offence. Before this Magistrate, the Crown relied upon a comparative decision of Bartley v Macerlich [2014] QDC 114, in which a sentence of 12 months' imprisonment, with a parole release date fixed after serving 3 months, was upheld on appeal. There were some similarities between that case, and the appellants, in terms of repeat offences. That would appear to be the basis for the Magistrate considering that a head sentence of 12 months was appropriate.

[40] In the circumstances, I consider that the Magistrate's discretion has miscarried, and it is therefore appropriate for this Court to resentence the appellant.

[41] The purposes for which a sentence may be imposed on an offender are set out in s 9(1) of the Penalties and Sentences Act 1992 and include:

• (a) to punish the offender to an extent or in a way that is just in all the circumstances;
• (b) to provide conditions in the court's order that the court considers will help the offender to be rehabilitated;
• (c) to deter the offender or other persons from committing the same or a similar offence;
• (d) to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved.

[42] Section 9(2) sets out a number of matters the court must have regard to, which includes, as already noted, sentences already imposed on the offender that have not been served (s 9(2)(k)). Section 9(10) requires the court to treat previous convictions as an aggravating factor, if that is considered reasonable having regard to the nature of and the time since the previous convictions. But despite that provision, any sentence imposed must not be disproportionate to the gravity of the current offence (s 9(11)).

[43] The maximum penalty which may be imposed for this offence is 18 months imprisonment.

[44] There was no suggestion on this appeal that anything other than a sentence of imprisonment was appropriate in the circumstances of this case. That is plainly correct, having regard to the appellant's history of committing the same offence.

[45] Although, both before the Magistrate, and on this appeal, counsel for the appellant referred to authority which may be said to support a head sentence of 6 months (Queensland Police Service v Gregory [2010] QDC 388), as the decision in Bartley v Macerlich makes clear, a sentence of 12 months is not outside the appropriate range for an offence of this kind, committed by a person with a history of like offences. Indeed, in Bartley, it is fair to say the offender presented with more favourable circumstances than the appellant (being younger, and having a less extensive criminal and traffic history). His Honour Judge Smith, in dismissing the appeal in Bartley, said although the sentence may be regarded as heavy, it was not so unreasonable or plainly unjust as to give rise to an inference that the discretion miscarried (at [38]). The offender in Gregory was slightly older than the appellant, and had what was described as an "extensive history for traffic offences", including five unlicensed driving offences, six disqualified driving offences and seven offences of driving under the influence of liquor.

[46] In this case, and having regard to both Gregory and Bartley, I consider that the term of 12 months imprisonment is an appropriate sentence in the circumstances. The appellant being older than the offender in Bartley, and having a lengthier history of the same offences, the sentence of 12 months in his case could not, in my view, be described as heavy. The offence is, as the Magistrate said, a serious one, reflecting as it does defiance of the law and contempt for orders of the Court. Where that behaviour is repeated on multiple occasions, as in the appellant's case, it is appropriate to conclude that a more severe penalty is warranted. Despite the fact that this was one offence committed on 8 October 2014, with no accompanying offences, and the positive factors of cooperation with police, admitting the disqualification, and pleading guilty; the fact that it is the 22nd time the appellant has committed this offence called for a significant penalty.

[47] Looked at in isolation from the sentence which was imposed in the Supreme Court on 12 December 2014, it may be said that structuring the sentence to provide for release on parole after serving one-third (consistently with the approach frequently taken on a plea of guilty) would be unremarkable.

[48] However, the sentence imposed for this offence must be considered by reference to the Supreme Court sentence imposed in December 2014.

[49] Before the Magistrate, and on this appeal, reference was made to the relevance in this case of applying the "totality principle". The ambit of the common law "totality principle", both in its original and extended senses, is clearly explained by Philip McMurdo J (with whom Holmes JA (as her Honour then was) and Gotterson J agreed) in R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206 at [18]- [20].

[50] It is the second way in which the principle has been extended that may be said to be applicable here. That is, in sentencing an offender who is then serving an existing 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".[7] This aspect of the common law principle is reflected in s 9(2)(k) of the Penalties and Sentences Act. But more broadly, the requirement to impose a sentence that is just in all the circumstances (s 9(1)(a)) may also be said to embody these principles.

[51] Although the appellant was not, in March 2015, in custody under the Supreme Court sentences, he remained subject to those sentences, for an operational period which extended to December 2017. The considerations taken into account by Lyons J in determining that it was appropriate to suspend the sentences on 12 December 2014, after the appellant had served 5½ months which was declarable time, in addition to the time that was not declarable, some of it in solitary confinement, were significant. Viewed in that context, as the sentence imposed by the Magistrate in March 2015 was required to be, to require the appellant to serve a further 4 months in actual custody, for this offence, in my view offends the totality principle, would be inconsistent with and indeed put at risk the positive steps towards rehabilitation that were emphasised by Lyons J, and would not be just in all the circumstances.

[52] It is unlikely, in my view, that had this offence been brought to the Supreme Court's attention, there would have been a different outcome; or certainly not an outcome that would have seen the appellant serve an additional 4 months in actual custody, in light of the time he had already served.

[53] In my view, the circumstances of this case, in particular having regard to the sentence imposed by Lyons J on 12 December 2014, and the sentencing remarks made on that occasion, were such as to bring this matter within that type of case referred to in Molina and Hogon, where the public interest may be said to be better served by not returning the appellant to custody; but rather allowing the opportunities for his overall rehabilitation to continue. That view having been formed by Lyons J in the Supreme Court, in my view it would not be just, in all the circumstances, to impose a sentence inconsistent with that overall outcome, for the offence the subject of this appeal.

[54] In my view, the sentence that is just in all the circumstances is a sentence of 12 months imprisonment, which is wholly suspended, for an operational period of 2 years and 3 months from the date of this decision (which would come to an end at the same time as that imposed by Lyons J). The order for disqualification for 3 years imposed by the Magistrate ought to be confirmed.

[55] The option of suspending the sentence, rather than immediate release on parole, is preferable in this case because, in my view, a significant part of the appellant's rehabilitation efforts involve him moving to Melbourne, and so distancing himself from the poor influence of his associates on the Gold Coast, but also where he has family support and a job.

[56] In so far as the purposes of sentencing are otherwise concerned, it is difficult to see that a term of actual custody would, in the circumstances of the appellant's case. provide any benefit of rehabilitation. On the contrary, it would likely derail the efforts already made towards rehabilitation, and potentially set the appellant back on his previous course. Likewise, it is difficult to see that requiring an actual period of custody would serve any purpose of personal deterrence (in a manner that could not be served by the imposition of a term of imprisonment, suspended for a substantial operational period). A sentence of imprisonment which is suspended is nonetheless a sentence of imprisonment[8] and is a significant punishment,[9] which carries with it the consequence of being required to serve part or the whole of the period of it in actual custody if the person commits another offence punishable by imprisonment within the operational period.[10] The element of general deterrence is met by the imposition of an appropriate head sentence, and is not compromised by suspending the sentence.[11] An appropriate head sentence, and substantial operational period, in my view, also appropriately reflect the community's denunciation of this type of conduct.

[57] I therefore make the following orders:

1. Allow the appeal
2. Vary the sentence imposed by the Magistrate, so that the sentence imposed is a sentence of 12 months imprisonment, wholly suspended, for an operational period of 2 years and 3 months from today.
3. Otherwise, confirm the order of the Magistrate made on 18 March 2015.

[1] He had an additional four court appearances prior to this time, for unlicensed driving, in 1998, 2002 and 2004.

[2] As counsel for the appellant noted on this appeal, although it is clear he referred on a number of occasions to tendering various documents (including the sentencing remarks) in the proceedings before the Magistrate, it does not appear any of the documents were marked as exhibits. Nevertheless, it was not in dispute that the relevant documents were put before the Magistrate.

[3] Although the Magistrate was not referred to these provisions, this submission reflects ss 9(10) and 9(11) of the Penalties and Sentences Act 1992.

[4] The phrase used by Kearney J in Hogon at 405.

[5] See, for example, R v Doraho [2011] QCA 29 at [19] per Chesterman JA.

[6] R v Hyatt at [13] per Margaret Wilson JA; Ann Lyons J agreeing at [15].

[7] See R v Beattie at [19] and the authorities there referred to; see also the discussion in the reasons of Morrison JA in R v Kendrick [2015] QCA 27 at [34]- [38].

[8] JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18 at [15].

[9] Elliott v Harris (No 2) (1976) 13 SASR 516 at 527.

[10] See ss 145, 146 and 147 of the Penalties and Sentences Act 1992.

[11] R v Beattie [2014] QCA 206 at [30].