West v Queensland Police Service [2025] QDC 205

AB v R [1999] HCA 46; (1999) 198 CLR 111

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172

Baker v Commissioner of Police [2022] QDC 141

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gronow v Gronow (1979) 144 CLR 513

Harman v Queensland Police Service [2018] QDC 146

Jones v Queensland Police Service [2022] QDC 281

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

McDonald v Queensland Police Service [2017] QCA 255

Mill v The Queen [1988] HCA 70; [1988] 166 CLR 59

Muldrock v The Queen [2011] HCA 39

Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

R v Cane [2023] QCA 199

R v D [1995] QCA 329; [1996] 1 Qd R 363

R v De Simoni [1981] HCA 31

R v Lemass (1981) 5 A Crim R 230

R v McDonald [2005] QCA 383

R v McIntosh [1923] St R Qd 278

R v Morse (1979) 23 SASR 98

R v O'Grady; Ex parte Attorney-General (Qld) [2003] QCA 137

R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384

R v Tait [1998] QCA 304; [1999] 2 Qd R 667

R v Verdins (2007) 16 VR 269

R v Yarwood [2011] QCA 367

Teelow v Commissioner of Police [2009] QCA 84

The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206

The Queen v Crofts [1998] QCA 60; [1999] 1 Qd R 386

The Queen v Kendrick [2015] QCA 27

Trott v Commissioner of Police [2018] QDC 165

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

Burkett S of the Office of the Director of Public Prosecutions for the respondent.

• [1] On 14 July 2025, the appellant was convicted on her own plea of guilty in the Magistrates Court held in Cairns of 25 offences and she was sentenced to an effective two years imprisonment, with a parole release set at 19 November 2025.
• [2] The appellant now appeals her sentence on the grounds that it is excessive because:
  1. The sentencing magistrate erred by taking into account uncharged acts; and
  2. The sentence is otherwise excessive.
• [3] The appeal is opposed. The respondent argues that the inclusion of uncharged acts was permissible as contextual surrounding circumstances, but says that even if impermissible aggravating facts of uncharged acts were included, the sentence was within the permissible range for concurrent sentences for the whole offending.
• [4] On my review, it is difficult to discern whether the sentencing magistrate erred by taking into account uncharged acts, but having regard to my findings on the second ground, it is unnecessary to finally decide that point. Ultimately, I have concluded that the sentence does exceed the permissible range in the order of 15 to 20 months' imprisonment, which is supported by the comparative cases. Having regard to the nature and circumstances of the offending, the appellant's background, relevant criminal history and mental and physical health, the time in actual custody ought to be reduced. The overall sentence should fall in the higher end of the range, in the order of 20 months' imprisonment. I am persuaded that the sentence was excessive generally or as a result of an error in exceeding that range.
• [5] Accordingly, I allow the appeal and make orders reducing the sentences for charges 20 and 25 to 20 months' imprisonment for each of those separately, but I affirm all other orders.

• [6] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld).
• [7] Pursuant to s 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave if there are special grounds for giving leave.

1. The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.[1] Its function is to consider each of the grounds of appeal, having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.[2] In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate's view.[3]
2. By operation of s 222(2)(c), the appellant can "only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate", that is, "beyond the acceptable scope of judicial discretion" or "so outside the appropriate range as to demonstrate inconsistency and unfairness".[4] To succeed, the appellant must establish some legal, factual or discretionary error.[5] Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence.

• [10] In the case of specific error, the appellate court's power to intervene is enlivened and it is duty-bound to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.[6] By contrast, absent identifiable specific error, the appellate court ought only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.[7]

1. Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried, resulting in an excessive sentence.[8] In that context, it may be vitiated by an error of principle, or by a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[9]

• [12] The sentence proceeded on an agreed statement of facts, backgrounded by the appellant's character, including her criminal history; the offending was committed in breach of a probation order.
• [13] The offending spanning seven months can be described, with the sentence imposed, as follows:

On 23 September 2024, when confronted by the store-attendant in Hairhouse Warehouse over perceived stealing, the appellant became aggressive, threatened to hit him, grabbed him around the neck causing redness and broke his necklace.

On 8 November 2024, the appellant stole a handbag from Mimco. She made full admissions to Police when questioned.

On 15 November 2024 The appellant attempted to steal $943 worth of groceries from Woolworths by leaving the store without paying. She was pursued by staff and members of the public. The appellant struck a member of the public to the body with her handbag; rammed her trolley into the body of a staff member and hit him in the face; slapped the same member of the public; and then chased and struck a second member of the public with her handbag. When interviewed, she made admissions to having stolen items and said she "probably did assault someone as that is how a woman is going to react."

On 6 December 2024 the appellant and her partner together stole $475 worth of items from Bunnings.

On 18 December 2024 the appellant stole $741 worth of items from Intersport.

On 27 December 2024 the appellant stole $250 worth of items from Coles Port Douglas. When questioned by Police she made admissions to having stolen the items.

On 27 December 2024, the appellant stole $200 worth of clothes from Cotton On Port Douglas. When questioned by Police she made admissions to having stolen the items.

On 30 December 2024, the appellant stole $85 worth of items from Woolworths at Mossman. When questioned by Police she made admissions to having stolen the items.

On 31 December 2024, the appellant stole $50 worth of items from Coles Port Douglas. She later called Police and left a voicemail telling them that she had stolen some items for New Years Eve, that she knew it was wrong to have done so, she offered to repay the items and left her contact details so that she could be charged. When subsequently arrested, she made full admissions to Police.

Using or permitting use of a vehicle for which a number plate was not attached

On 26 February 2025, the appellant drove a Ute with no number plates attached. It had, for the preceding 37 days, been unregistered and uninsured. On 10 July 2024 the appellant had been disqualified by the Court from driving.

Driving a vehicle without a driver license whilst disqualified by a Court order

On 14 March 2025, the appellant drove a car which was unregistered, uninsured after having been disqualified by a Court. Police followed the car and activated their lights and sirens. The appellant did not stop. She put items over her head to conceal her identity and drove at approximately 70-76km/hr in a 60km/hr zone. Police stopped their pursuit. When later contacted she made admissions and told Police that she did not pull over as she knew the offence carried a mandatory minimum sentence. She did not attend an appointment to interview on 28 March 2025 and told Police in a phone call, 'catch me if you can'.

Driving a vehicle without a driver license whilst disqualified by a Court order

On 24 March 2025 the appellant was driving a rental car that was not returned on 18 April 2025 per the rental agreement. Police setup a tyre deflation device on Ishmael Road in Earlville in an attempt to stop the car. The appellant approached the tyre deflation device, slowed and performed a u-turn.

On 19 April 2025, the appellant drove off without paying for $306.55 worth of fuel.

On 20 April 2025, the appellant drove off without paying for $217.34 worth of fuel.

On 27 April 2025 the appellant entered the Mossman hospital and stole two staff meals and a set of car keys from a staff member's locker. The appellant drove off in the stolen car. On 30 April 2025 the stolen car was found in Mareeba. It was searched and within it was the appellant's fathers' ashes, a photo of the appellant, 2 grams of heroin and 1 gram of methylamphetamine.

On 1 May 2025 the appellant was arrested. She made admissions when spoken to by Police.

• [14] In respect of the breach of probation order made on 10 July 2024, the appellant was convicted but not further punished, and was resentenced in respect of the subject offending with concurrent sentences as follows:

• [15] The prosecutor relied upon the appellant's lengthy and relevant criminal history, including the breach of the probation order. He referred the court to comparative cases of Baker v Commissioner of Police [2022] QDC 141, Trott v Commissioner of Police [2018] QDC 165, and Harman v Queensland Police Service [2018] QDC 146, and contended for a sentence in the order of two years imprisonment.
• [16] The appellant's solicitor highlighted the appellant's antecedents to contend for a sentence of 12 months' imprisonment. At the time of her sentencing, the appellant was a 30-year-old single mother raising three children, aged ten, eight, and two. Her two eldest children reside with their father, while her youngest lives with her mother, reflecting the complexities of her family dynamics. Tragically, she has endured significant personal losses: her father, who subjected her to domestic violence during her childhood, passed away in December 2023, and her partner died in December 2024. These events have compounded the challenges she faces. The appellant's life has been further complicated by a history of legal troubles, as she carries a relevant criminal record. Despite this, she has demonstrated a capacity for employment, having worked at various times, including as a receptionist at a medical centre. However, a car accident in 2016 left her with an acquired brain injury, leading to a diagnosis of frontal lobe syndrome, post-traumatic stress disorder, depression, memory issues, and the loss of an eye. These conditions have significantly impaired her executive functioning, resulting in poor judgment and impulsivity, which likely contribute to her challenges in navigating life's demands. In an effort to address her mental health and behavioural challenges, the appellant has been actively engaged in support services. She attends fortnightly sessions with a psychologist through the Prison Mental Health Service and has secured an NDIS package to assist with her ongoing needs. Additionally, she has taken proactive steps toward rehabilitation by applying for a program at a Lives Lived Well facility in Rockhampton, demonstrating her commitment to improving her circumstances despite the significant obstacles she faces.
• [17] During the course of his sentencing reasons, the learned magistrate highlighted the factual basis, and nature and the seriousness of the offending. In doing so, he accepted the timing of the appellant's plea as an expression of remorse, noting that the guilty plea resulted in a lesser sentence pursuant to s 13 of the Penalties and Sentences Act 1992 (Qld). He characterised the appellant's criminal history and breaches of probation as demonstrating a complete disregard for authority, the rights of others, and societal norms, describing her past criminal behaviour as "appalling and has been continually appalling, and it has to attract some condign disapproval and punishment by this court", and the appellant's "lengthy and relevant criminal history" being indicative of a recidivist offender. His Honour turned to the appellant's circumstances, age, and cognitive impairment resulting from a traumatic brain injury, as detailed in Professor McConnell's report dated 11 January 2019. The report noted the appellant's impaired executive functioning, poor judgment, and impulsivity, with a guarded prognosis and no significant likelihood of improvement. The learned magistrate assessed the appellant's prospects of rehabilitation as unlikely, given her age, extensive criminal history, and the failure of previous sentences to deter further offending. His Honour had regard to the purpose of the sentence by virtue of section 9(1) of the Penalties and Sentences Act, being very appropriate to the offending, to punish to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, and make it clear that the community denounces the conduct in the offending. The learned magistrate had regard to the comparative extent of the decisions proffered, applying relevant principles to account for the appellant's physical cognitive impairment. The learned magistrate considered that the totality of the appellant's offending warranted a tariff of 30 months imprisonment, but moderated the sentence to 24 months imprisonment with the appellant's earlier than customary release on parole to account for the appellant's mental impairment and other mitigating circumstances, including her plea of guilty and limited instances of cooperation with authorities. The learned magistrate imposed the sentence of imprisonment of 24 months on charges 20 and 25, and ordered that all periods of imprisonment were to be served concurrently with each other and with the sentences subject to the former probation order. A parole release date was set at 19 November 2025, which equates to 25% of the sentence, having regard to the declared pre-sentence custody of 74 days from 1 May 2025 to 13 July 2025, inclusive.

Did the learned magistrate err by taking into account uncharged acts?

• [18] The appellant relies upon R v Cane [2023] QCA 199 to argue that the learned magistrate impermissibly had regard to the uncharged acts that were impregnated in the facts (in bold type above) as the appellant was not charged with having assaulted any person on 15 November 2024, nor was she charged with having exceeded the speed limit on 14 March 2025.
• [19] The respondent argues that, notwithstanding the inclusion of aggravating facts of uncharged acts, they were not taken into account in respect of charge 4, and where otherwise permissible circumstances for charge 15, and the sentence was within the permissible range for concurrent sentences for the whole offending.
• [20] In R v Cane[11] the defendant was charged with kidnapping for ransom and assault offences. The Prosecution agreed not to proceed on the assault offences but to include the facts of the violence in the agreed statement of facts if the defendant pleaded guilty to kidnapping for ransom. When he was sentenced, the Judge took the violence into account. The Court of Appeal considered this was an error because the defendant was not charged with the assault offences (and this breached the De Simoni[12] principle) the Court of Appeal observed:

"This prohibition renders it impermissible for a sentencing judge to take into account an act, omission, matter or circumstance which it would be otherwise permissible to take into account on sentence, if the circumstances would then establish a separate offence which did not form part of the offence for which the person is to be sentenced; a more serious offence; or a circumstance of aggravation of which the person to be sentenced has not been convicted."

• [21] In R v O'Grady; Ex parte Attorney-General (Qld),[13] the Court of Appeal noted the importance of background facts being placed before the sentencing court to assist in understanding the circumstances in which the criminality is to be assessed, and that such an approach is within the principles expressed in R v D,[14] where the Court summarised the sentencing principles:

(a) a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted, either on a plea of guilty or after a trial, whether those circumstances increase or decrease the culpability of the offender;

(b) common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes (cp. Merriman at 593, R v T at 455); and

(c) an act, omission, matter or circumstance within (b) which might itself technically constitute a separate offence is not, for that reason, necessarily excluded from consideration.

2. An act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish:

(a) a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted;

(b) a more serious offence than the offence of which the person to be sentenced has been convicted; or

(c) a 'circumstance of aggravation' (Code, s 1) of which the person is to be sentenced has not been convicted; i.e., a circumstance which increases the maximum penalty to which that person is exposed.

3. An act, omission, matter or circumstance which may not be taken into account may not be considered for any purpose, either to increase the penalty or deny leniency; and this restriction is not to be circumvented by reference to considerations which are immaterial unless used to increase penalty or deny leniency, e.g., 'context' or the 'relationship' between the victim and offender, or to establish, for example, the offender's 'past conduct', 'character', 'reputation', or that the offence was not an 'isolated incident', etc."

• [22] While the learned magistrate did not expressly refer to the acts of violence impugned in charge 4, it is tolerably clear that he did not place undue weight on the offending of personal violence since he observed the appellant was to be sentenced on the basis a sentence of imprisonment should only be imposed as a last resort and a sentence that allows her to stay in the community was preferable.
• [23] In respect of charge 15, in my view, the reference to "...and drove at approximately 70-76km/hr in a 60km/hr zone" was permissible in the circumstances of the evasive driving, notwithstanding that she was not charged with an offence of exceeding the speed limit. The same could be said of the circumstances akin to stealing that "the appellant entered the Mossman hospital and stole two staff meals and a set of car keys from a staff member's locker" impugned in charge 25 of unlawful use of a motor vehicle.
• [24] It is unnecessary to finally decide these points, having regard to my findings below that the sentence exceeds the permissible range in any event.

Is the sentence otherwise manifestly excessive?

• [25] Manifest excess may be exposed, absent any specific identifiable error, by a consideration of all the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases.
• [26] At the sentencing hearing, the parties relied upon the comparative cases of Baker v Commissioner of Police [2022] QDC 141, Trott v Commissioner of Police [2018] QDC 165, and Harman v Queensland Police Service [2018] QDC 146. On appeal, this court was referred to its earlier decision in Jones v Queensland Police Service [2022] QDC 281.
• [27] Baker appealed his sentence of 18 months' imprisonment imposed for thirteen offences committed on five separate occasions over the period of one month. Judge Fantin concluded that the cases cited supported the head sentence of 18 months' imprisonment that was imposed. In reaching this conclusion, her Honour observed at [18], appositely in some respects, that:

"The appellant was a recidivist property offender. He was a mature man whom previous terms of imprisonment had not deterred from reoffending. Although the value of most of the property offences was low, there was a large number of them, the driving offences were more serious, the offending was persistent (occurring on multiple dates), and it occurred in breach of a suspended sentence and parole, showing a flagrant disregard for court orders."

• [28] Trott was sentenced to two years imprisonment for six offences committed on three separate occasions of unlawful use of a motor vehicle, driving while relevant drug is present, driving a motor vehicle while a driver licence is suspended, stealing, burglary and committing indictable offence, and fraud. That 48 year old appellant had a "lengthy criminal history", had been driving a stolen car whilst unlicensed, whilst under the influence of cannabis and methylamphetamine, when police intercepted him. He was then released on bail, and, in breach of that bail, he broke into a house and stole $5,000 worth of property. He subsequently sold an item that he had stolen and signed a declaration stating, fraudulently, that the item was his. On appeal the court took account of the appellant's mature age; his lengthy and relevant criminal history which demonstrates that he is a recidivist offender; considerations of personal deterrence, just and appropriate punishment, public denunciation and community protection are highly relevant; previous sentences have failed to deter the appellant from offending; rehabilitation is unlikely given his age, criminal history and the opportunities he has been given in the past by various courts to assist in that regard; the seriousness of the offending conduct; and the fact that he offended whilst on bail for similar offences. The court held the imposition of a 2-year head sentence was distinctly moderate, which was undisturbed other than for the imposition of a parole eligibility date.
• [29] Harman appealed his effective head sentence of 12 months imprisonment carried by the most serious offence of driving whilst disqualified by court order. His parole release date was fixed at the 3 month mark. Driving disqualification periods were imposed. The 28-year-old appellant's offending spanned a three-week period including driving with a relevant drug in his saliva; driving whilst disqualified by court order (having driven away after a magistrate disqualified him from driving for a month); receiving tainted property; used/ permitted use of vehicle with registration plate belonging to another vehicle; supply dangerous drugs; possess dangerous drugs; driving whilst disqualified by court order; unregistered vehicle on road; used vehicle with registration plates belonging to another vehicle; and stealing. He had relevant criminal and traffic histories spanning 12 years. They included 6 previous offences of driving whilst disqualified, 6 of driving without a licence and twice operating a vehicle dangerously, as well as single entries for driving under the influence of alcohol and drug driving. Most, and the worst, of those matters were dated and related to a 6-month period in 2008 when the appellant was only 18 years old. After reviewing the case, Judge Clare SC concluded that the sentence fits comfortably within the pattern disclosed in the authorities cited.
• [30] Jones successfully appealed against a sentence of 15 months' imprisonment imposed on 15 street and property offences. Like the present case, some of those offences were committed in breach of a probation order. A parole release date was set after that appellant had served 46.7% of her sentence. The appeal was allowed only so far as the parole release date, which was reduced to one-third. In allowing the appeal, this court found that the sentencing discretion had miscarried by adopting a notional starting point of 18 months' imprisonment, before then reducing that notional sentence to take account of the plea of guilty. The court accepted that the sentence of 15 months' imprisonment was within but at the high end of the range consistent with a global approach, having observed that at [6]:

"It seems to me that a notional head sentence of 18 months of imprisonment (before reduction for the plea of guilty) was disproportionate to the gravity of count 1 for the offence of enter premises and commit indictable offence by break. Even allowing for some uplift adequate to accommodate the overall criminality in the context of concurrent sentencing the effective sentence should not have exceeded 15 months before any account of a plea of guilty."

• [31] Whilst analysis of closely comparable cases often provides valuable guidance, those proffered, here and below, have relative comparative value depending on their age, offender's idiosyncratic antecedents, criminal history, nature and seriousness of the offending involving differing aggravating features, prevalence, and applicable maximum penalties at the times they were decided. Even so, the synthesis of the sentencing process must align with principles of totality.
• [32] In my respectful view, the comparatives support a range here of an effective sentence up to 20 months imprisonment, taking into account matters of totality, relevant criminal history and personal deterrence commensurate with the appellant's mental and physical health.
• [33] In Mill v The Queen,[15] the High Court referred with approval to the passage in Thomas, Principles of Sentencing 2nd Edition, page 56 to 57:

"The effect of the totality principle is to require a sentencer who has passed a series of offences, each properly calculated in relation to the offence for which it is imposed, and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is, 'just and appropriate.' The principle has been stated many times in various forms. 'When a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the Court to take a last look at the total, just to see where it looks wrong.'; when cases of multiplicity of offences have come before the Court, the Court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences?"

• [34] In The Queen v Crofts[16], the Court of Appeal said:

"Of course sentences of imprisonment for a number of offences often ought to reflect that the offences were not committed in isolation. This is commonly referred to as the totality principle. The totality principle requires a Judge who is sentencing an offender for a number of offences, to ensure the aggregation of sentences of imprisonment is a just and appropriate measure for the total criminality involved. When an appropriate sentence imposed for the most serious offence is adequate to punish the total criminality involved other sentences are made concurrent. When the sentence for the most serious offence is inadequate for that purpose, and cumulative sentences are imposed for one or more other offences, lower sentences than would otherwise be called for, can be imposed to achieve a suitable total punishment over all."

1. The ambit of the totality principle has been extended as explained in The Queen v Beattie, ex parte Attorney-General (Qld)[17] by Philip McMurdo J (as he then was) as follows:

"The principle has also been extended in the sentencing of an offender who is then serving an existing sentence. In such a case, 'the judge must take into account that existing sentence so that the total period to be spent in custody adequately and fairly represents the totality of criminality involved in all of the offences to which that total period is attributable'."

1. In The Queen v Kendrick,[18] Morrison JA (with whom Fraser JA and Henry J agreed) provided a superb analysis of the relevant authorities.[19] I don't propose to repeat all that was said by His Honour, with which I, of course, agree. At paragraph [56], His Honour distilled the approach as follows:

"The preferable approach, derived from Mill and Johnson, is that a sentence is fixed for each offence, then aggregated before taking the next step of determining concurrency or accumulation, and to consider what is an appropriate non-parole period. However, Johnson recognised that it was not an immutable practice."[20]

1. In sentencing concurrently, it was permissible to allow for the overall criminality by imposing a sentence for the most serious offence, which is more severe than it would be if the offence were falling for sentence in isolation.[21] However, such a sentence must remain within a just range of punishment for the offence, lest it offend the over- arching principle that a sentence must not be so severe as to be disproportionate to the gravity of the offence to which it attaches.[22]

• [38] It seems to me that the notional starting point of 30 months' imprisonment was excessive and unsupported by the comparative cases, and the resultant modification to 24 months carried by charges 20 and 25 was disproportionate to the offending and excessively severe in the circumstances of this case.
• [39] This may have been a product of the learned magistrate giving undue weight to the criminal history. He characterised the appellant's criminal history and breaches of probation as demonstrating a complete disregard for authority, the rights of others, and societal norms, describing her past criminal behaviour as follows:

"By way of observation, your criminal history and, indeed, the charges before me, show a complete disregard for authority, a complete disregard for the rights of others in terms of the assaults and, indeed, the stealing charges, and a complete lack of adherence to the matters that society requires in normal functioning in terms of respect for other people's property and, indeed, respect for other people. Your behaviour, frankly, is appalling and has been continually appalling, and it has to attract some condign disapproval and punishment by this court.

By way of observation, your lengthy and relevant criminal history demonstrates that you are a recidivist offender, that considerations of personal deterrents and just and appropriate punishment, together with public denunciation and community protection, are highly relevant, in some parts modified by Professor McConnell's report in relation to personal deterrents, but it still remains a relevant factor, because, frankly, every sentence that you have been exposed to has not had the right effect upon you. It has not stopped you from continuing to offend.

Also of relevance, as I say, is that those previous sentences have utterly failed to deter you from offending, and that rehabilitation, therefore, is unlikely, given the age that you are at in terms of the amount of offending - up until this time, given your age - together with your criminal history, and that opportunities that you have been given in the past by various course have just had no effect or not enough effect to have any serious impact. And the seriousness of the offending conduct that I have been taken to and that I have referred to in - when I was receiving submissions, is quite serious."

• [40] It is trite law that the appellant's criminal history is a relevant matter for the proper exercise of the sentencing discretion. In particular, since the offence in charge 2 was one involving violence within the meaning of s 9(2A) of the Penalties and Sentences Act, the learned magistrate was required to have regard to the matters set out in s 9(3). In particular, s 9(3)(g) required the court to have regard to "the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed". Further, s 9(10) provides:

"In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to -

(a) the nature of the previous conviction and its relevance to the current offence;

(b) the time that has elapsed since the conviction."

"Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence."

• [42] Clearly enough, the provisions reflect the common law as it stood and was proclaimed in Veen v The Queen (No. 2) [23] as follows:

"The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but 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 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. Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375."

• [43] This must also be considered in light of the appellant mental and physical impairments, albeit not demonstrated to have caused or contributed to the offending as of the attracting the approach in R v Yarwood [2011] QCA 367, affirming R v Verdins (2007) 16 VR 269 at [32] & Muldrock v The Queen [2011] HCA 39 at 50 - 58. It seems to me that her individual circumstances warrant some moderation of both personal and general deterrence compared to a person of normal disposition. Further, her state has a bearing on actual imprisonment, whereby she is plainly at risk of exposure to risks of aggravation of her conditions in a prison environment. I think that the time ordered for actual custody ought to remain at 25% and be proportionally reduced to 17 October 2025 instead of 19 November 2025.
• [44] In my respectful view, the trial magistrate imposed an excessive sentence outside the permissible range, but in circumstances where actual custody is appropriately reduced, the sentence ought to be at the higher end of the range, in the order of 20 months.
• [45] Even allowing for some uplift adequate to accommodate the overall criminality in the context of concurrent sentencing, whilst it does not clearly appear how the sentencing magistrate reached the result embodied in the orders, I am bound to conclude that the sentence is excessive, having exceeded 20 months imprisonment.

• [46] Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion.
• [47] The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community. The relevant factors to which the court must have regard are in the subsequent subsections of s 9 of the Penalties and Sentences Act.
• [48] It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so. The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence.
• [49] The 30-year-old appellant has a criminal history commensurate with her social instability and health. Relevantly, she has past offending (including those subject of probation) of wilful damage, assault occasioning bodily harm, three common assaults, 23 offences of sealing, 5 offences of entering premises or houses, trespass, car offences involving unlicenced driving, no number plate, unregistered and uninsured cars, evasion and three assaults or obstruct police, seven unlawful use of motor vehicle, having suspected stolen property and drug offences.
• [50] Except for the offending in charge 2, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable. That does not apply to charge 2, which calls for consideration of the risk of physical harm to the community if a custodial sentence is not imposed and the need to protect the community from that risk. It seems to me that the risk is moderate, having regard to her past violent offending of assault occasioning bodily harm and assaults, as well as lesser offending of assault or obstruct police.
• [51] The appellant is a single mother of three, faces complex personal and legal challenges. She raises her youngest child with her mother's support, while her two older children live with their father. She has suffered significant trauma, including childhood domestic violence from her late father and the loss of her partner in 2024. A 2016 car accident caused an acquired brain injury, resulting in frontal lobe syndrome, PTSD, depression, memory issues, and the loss of an eye, all of which impair her executive functioning and contribute to poor judgment and impulsivity. Despite a relevant criminal record, she has shown employability, previously working as a receptionist. She is actively pursuing rehabilitation, engaging in fortnightly psychological support through the Prison Mental Health Service, securing an NDIS package, and applying for a program at a Lives Lived Well facility in Rockhampton, reflecting her commitment to overcoming her challenges.
• [52] It seems to me that the sentence should remain undisturbed except that the variation of the sentencing orders for charges 20 and 25 ought to be reduced to a sentence of 20 months imprisonment instead of the sentence imposed of 24 months imprisonment with an adjusted parole release date.
• [53] I allow the appeal on that limited basis.

• [54] For these reasons, in allowing the appeal, I make the following order:

1. Appeal allowed. 2. The sentence and orders of the Magistrates Court made in Cairns on 14 July 2025 are varied as follows:

(a) For charge 20, the sentence of 20 months imprisonment is substituted for the sentence imposed of 24 months imprisonment. > > (b) For charge 25, the sentence of 20 months imprisonment is substituted for the sentence imposed of 24 months imprisonment. > > (c) The parole release date of 17 October 2025 is substituted for 19 November 2025.

• [55] Otherwise, the sentencing orders made on 14 July 2025 are affirmed.

1. [1] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255 at [47].

[2] White v Commissioner of Police [2014] QCA 121 at [5]- [8].

[3] White v Commissioner of Police [2014] QCA 121 at [5]- [8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255 at [47].

1. [4] R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606.
2. [5] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at [22] - [23] followed in Teelow v Commissioner of Police [2009] QCA 84 at [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255 at [47]; contrast Forrest v Commissioner of Police [2017] QCA 132 at 5.

[6] Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R [1999] HCA 46; (1999) 198 CLR 111 at [130] per Hayne J (minority).

[7] House v The King (1936) 55 CLR 499, 504 and 505, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176-178; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 517-519, and Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R [1999] HCA 46; (1999) 198 CLR 111, [130] per Hayne J (minority). See also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J, also applied by Chesterman J in R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 at [54].

1. [8] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR 513 at 519, 525, 534 and 537.
2. [9] House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 176-178; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 517-519.

[11] R v Cane [2023] QCA 199 at [28].

[12] R v De Simoni [1981] HCA 31.

[13] R v O'Grady; Ex parte Attorney-General (Qld) [2003] QCA 137.

[14] R v D [1995] QCA 329; [1996] 1 Qd R 363 at 403-404.

[15] Mill v The Queen [1988] HCA 70; [1988] 166 CLR 59.

[16] The Queen v Crofts [1998] QCA 60; [1999] 1 Qd R 386 at 387.

1. [17] The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 2006 at [19].
2. [18] The Queen v Kendrick [2015] QCA 27.

[19] The Queen v Kendrick [2015] QCA 27 at [31]- [41].

[20] See for example, R v Coleman Ann Lyons J (with whom Fraser JA and Gotterson JA agreed) had regard to the whole of the existing sentence (not just the remainder) and the cumulative sentence.

1. [21] Nguyen v The Queen [2016] HCA 17; (2016) 256 CLR 656, 677 [64]; R v Nagy [2003] QCA 175; [2004] 1 Qd R 63, 72.
2. [22] Veen v The Queen [No 2] (1988) 164 CLR 465, 477.

[23] Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14].