Cowcill v The Queensland Police Service [2026] QDC 55

DISTRICT COURT OF QUEENSLAND CITATION: Cowcill v The Queensland Police Service [2026] QDC 55 PARTIES: CHRISTOPHER TROY COWCILL (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO: APPEAL NO: 16/26 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 11 May 2026 DELIVERED AT: Cairns HEARING DATE: 8 May 2026 JUDGE: Morzone KC DCJ ORDER: 1. Appeal dismissed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – ERROR OF LAW - review pursuant to s 222 Justices Act 1886 - – Enter premises and commit indictable offence by break –– whether sentence imposed excessive - whether misapprehension of facts and “premises” for charge of entering premises and commit indictable offence by break – whether “premises” included land surrounding gate and car – whether failure to set earlier parole release date – whether otherwise excessive compared to other cases. LEGISLATION: Criminal Code 1889 (Qld) ss 1, 418, 421(2) & 421(3) Justices Act 1886 (Qld) ss 222, 222(2)(c) & 223(1) Penalties and Sentences Act 1992 (Qld) ss 9. CASES: AB v R (1999) 198 CLR 111 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Atu v Queensland Police Service [2026] QDC 11 Dwyer v Calco Timbers (2008) 234 CLR 124 Dinsdale v The Queen (2000) 202 CLR 321 Forrest v Commissioner of Police [2017] QCA 132 -- 1 of 15 -- 2 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR House v The King (1936) 55 CLR 499 Jones v Queensland Police Service [2022] QDC 281 Kentwell v R (2014) 252 CLR 601 Lowe v The Queen (1984) 154 CLR 606 Lovell v Lovell (1950) 81 CLR 513 McDonald v Queensland Police Service [2017] QCA 255 Mill v The Queen [1988] 166 CLR 59 Nguyen v The Queen (2016) 256 CLR 656 Norbis v Norbis (1986) 161 CLR 513 Pamtoonda v Commissioner of Police [2021] QDC 207 R v Bryant [2007] QCA 247 R v Cooney [2019] QCA 166 R v Coleman [2015] QCA 176 R v Corrigan [1993] QCA 417 R v Dance [2009] QCA 371 R v Lemass (1981) 5 A Crim R 230 R v Maxfield [2000] QCA 320 R v McIntosh [1923] St R Qd 278 R v Morse (1979) 23 SASR 98 R v Nagy [2004] 1 Qd R 63 R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 R v Smith [2009] 1 Qd R 239 R v Sumner [2022] QCA 8 R v Taylor [2007] QCA 214 R v Ungvari [2010] QCA 134 R v Vaughan [2005] QCA 348 R v Woods [2004] QCA 204 Teelow v Commissioner of Police [2009] QCA 84 The Queen v Baker [2011] QCA 104 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206 The Queen v Crofts [1999] 1 Qd R 386 The Queen v Kendrick [2015] QCA 27 Veen v The Queen [No 2] (1988) 164 CLR 465 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 COUNSEL: T Feeney for the Appellant C Peters for the Respondent SOLICITORS: Bolli Law for the Appellant. The Office of Director of Public Prosecutions for the Respondent. -- 2 of 15 -- 2 Summary [1] On 2 February 2026, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Cairns, of seven charges in breach of probation order. He was sentenced to a total effective sentence of two years' imprisonment with a parole release date of 16 June 2026, that is, release after eight months, with a declaration that of the whole 109 days of pre-sentence custody served between 16 October 2025 and 1 February 2026. The appellant was also disqualified from holding or obtaining a driver’s licence for 2 years and fined $100 for breaching his probation. [2] The appellant now appeals his sentence because it is excessive on the grounds that it is disproportionate to the offending and the appellant’s antecedents, with a relatively limited criminal history and real prospects of rehabilitation, the offending involved commercial premises and vehicles only, and not dwellings, and a loss of about $13,500; and although in breach of probation for similar offending, he had only turned to offending in his mature years, entered an early plea of guilty, and a sentence of imprisonment was a last resort. [3] The appeal is opposed. The respondent argues that the sentence was within the permissible range for concurrent sentences for the whole offending, and with a just and appropriate parole release date set at one-third of the sentence. [4] On my review, whilst the sentence is in the high end of the range, I am not persuaded that it is excessive generally or as a result of any error. The offending was determined, organised and premeditated, committed on multiple occasions over two months in breach of a recent probation order for similar offending, by a mature offender who had failed to engage with rehabilitation. Charge 6 was properly treated as the most serious offence to carry the head sentence, in circumstances where the premises, being a commercial vehicle, could be likened to a commercial building, and the comparative cases were correctly considered. The head sentence and parole release date were within the permissible range, and no error of principle, misapprehension of fact, or miscarriage of justice has been established. [5] Accordingly, I dismiss the appeal. Appeal [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. [8] 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 1 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (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 of 15 -- 3 magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.3 [9] 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. In the case of specific error, the appellate court’s power to intervene is enlivened and it is dutybound 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 [10] 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 Sentence Proceedings [11] The sentence proceeded on an agreed statement of facts, backgrounded by the appellant’s criminal history, and the domestic violence protection order. [12] The offending spanned about 2 months between August 2015 and October 2025 comprising: (a) Charge 1 of Enter Premises and commit indictable offence by break: On 17 August 2025 the appellant broke into a ute toolbox and stole a Makita power tool from a work ute at a worksite worth $500. 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]. 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) 154 CLR 606. 5 Allesch v Maunz (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 60, [35], adopting AB v R (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) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519, and Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority). See also Dinsdale v The Queen (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]. 8 Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR at 519, 525, 534 and 537. 9 House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519 9 (1936) 55 CLR 499, 504 and 505. -- 4 of 15 -- 4 (b) Charge 2 of Enter premises and commit indictable offence: On 25 August 2025 of breaking into Griffin Marine Services industrial premises at Portsmith in the early hours of the morning, stealing approximately $6,000 worth of exotic copper and rendering a three-phase compressor inoperable. The appellant was disguised and captured on CCTV. (c) Charge 3 of Enter premises with intent to commit and indictable offence: On 15 September 2025 of entering Ergon Energy premises at Goondi Hill through a broken fence but not completing a theft. (d) Charge 4 of Offence of driving etc while relevant drug is present in blood when driver not the holder of a driver licence: On 26 September 2025 the appellant drove with methylamphetamine and cannabis in his system. (e) Charge 5 of Driving motor vehicle without a driver licence Disqualified by Court order dated 26 September 2025. This was at the same time as charge 4, when he was also driving while disqualified. (f) Charge 6 of Enter premises and commit indictable offence by break: On 15 October 2025, the appellant, while disguised and previously having broken a gate, entered the yard of RWD Electrical at Earlville, got into an unlocked car canopy and stole Makita tools, batteries, drills and copper cable. The damage to the gate and value of goods amounted to $7,000. (g) Charge 7 of Enter premises with intent to commit the indictable offence: On 16 October 2025, the appellant was found by police on a construction site at Woree. He claimed to be homeless and falsely told police that the “tradies” said he could have anything on the ground. (h) Complaint and summons – Breach of probation order: The above offending breached a 15 month probation order imposed by the Cairns Magistrates Court on 17 June 2025. Prosecutors Submissions [13] The Police Prosecutor outlined the offending, which he characterised as determined, organised and premeditated, involving elements of sophistication including the use of disguises and the deliberate targeting of copper, which would have required an outlet to sell. He submitted the total value lost was approximately $13,500 and conceded the appellant had entered an early plea of guilty. The Police Prosecutor submitted that the appellant was not strictly recidivist but described him as determined. He identified the most directly relevant history as the probation order of 17 June 2025, imposed for similar property offending including stealing copper from Ergon Energy, which the appellant breached by commencing this offending within less than three months. His traffic history included four prior drug-driving offences (three within five years), a prior disqualified drive in February 2025, five unlicensed drives (three within five years), and a 2024 careless driving conviction resulting in six months' disqualification. The probation and parole report described the appellant as resistant, pre-contemplative and unmotivated to engage in rehabilitation. [14] The Police Prosecutor contended for a sentence of two to two-and-a-half years' imprisonment. In support of his sentencing range, he relied on R v Vaughan [2005] -- 5 of 15 -- 5 QCA 348, R v Taylor [2007] QCA 214 and R v Bryant [2007] QCA 247. He acknowledged the appellant was not as historically recidivist as the appellants in those cases but emphasised his maturity, the recent and relevant criminal history, the breach of probation, the need for deterrence, and his disregard for court orders. He confirmed all 109 days of pre-sentence custody were declarable and that the maximum penalty for the Earlville "enter premises and commit indictable offence by break" charge was life imprisonment. [15] The appellant's solicitor contended for a head sentence of 18 months' imprisonment, with a parole release date at the six-month mark, that is, after serving one-third of the head sentence. He submitted that the parole structure would achieve the necessary deterrence while engaging the appellant in a supervised release framework for the first time. [16] The appellant's solicitor sought to distinguish the cases of Vaughan, Taylor and Bryant in the two-to-three-year range as involving offenders with significantly more extensive criminal histories and had served terms of imprisonment for similar offences before reoffending. He submitted the appellant could not be categorised as a recidivist, having effectively four relevant criminal history entries, one of which dated to 2014 and the remainder flowing from the probation order of June 2025. In support of his proposed range he relied upon R v Dance [2009] QCA 371, but acknowledged that Dance was 17 to 18 years old, had the benefit of a psychological report supporting rehabilitation prospects, and was in full-time employment at the time of sentence, none of which applied to the appellant. Appellant’s Submissions [17] The appellant's solicitor outlined that the appellant was 47 years old, originally from Western Australia and raised in Darwin by parents who were both alcoholics and at times neglectful. He moved to Cairns in 2005 with a partner and child, held stable employment including eight years with StarTrack in a management role, work in hospitality, freight and pipelaying with an HR licence, and had a mortgage and a family. The breakdown of that relationship was the beginning of his client's downward spiral, culminating in an eight-month custodial term in 2014. The appellant has a 16-year-old daughter in Edmonton with whom he has a good relationship, though she is upset by his current behaviour, and two adult sons with whom the relationship is sporadic. [18] In the period before remand, his client was homeless, couch surfing, unemployed, had lost his Centrelink payments, and was actively using both cannabis and methylamphetamine, all of which the appellant's solicitor submitted were contributing factors to the offending. While in presentence custody, the appellant had enrolled in drug and alcohol courses, enrolled in a welding course, and had been working in the correctional centre kitchen since November 2025, progressing from food preparation to serving and then to preparing meals for staff. The appellant's solicitor submitted this demonstrated positive early steps toward rehabilitation. [19] The appellant's solicitor properly conceded that his client had not engaged with probation and accepted that the appellant was reported as resistant, pre-contemplative and unmotivated. He submitted, however, that the parole structure proposed would provide a stronger incentive for compliance, in that any failure would result in his client being returned to prison to serve the balance of the head sentence, and that his -- 6 of 15 -- 6 client understood that consequence. He indicated that his client's plan on release was to reside in Cairns, potentially with friends, with a possible opportunity to work in a landscaping business run by close friends. He acknowledged stable accommodation remained a challenge but submitted the appellant was motivated to address that first before re-engaging in employment. He submitted that the appellant was capable of living a law-abiding lifestyle, having regard to his prior employment record, and that apart from the 2014 episode and the recent cluster of offending, his history was not one of consistent and escalating property crime. Sentencing Remarks [20] The sentencing magistrate began the sentencing remarks acknowledging the appellant’s early pleas of guilty to the seven offences committed over the two-month period from 17 August to 16 October 2025, each of which was committed during the operational period of a 15-month probation order imposed by the Cairns Magistrates Court on 17 June 2025 for three counts of enter premises and commit an indictable offence, wilful damage, and possession of things used in connection with the commission of an offence. He found that the appellant breached that probation order by reoffending, and that he had failed to engage with probation in any meaningful way. He described the offending, and the need for the sentence to achieve punishment and specific deterrence, as well as general deterrence, noting the appellant's recent and relevant criminal history for property dishonesty offending and that he was in breach of the order at the time. He accepted that the appellant was drug-dependent, with an apparent motivation for the offending to fund his drug habit, but not by way of reduction. [21] The sentencing magistrate acknowledged the appellant's difficult childhood, with both parents being alcoholics, his estrangement from most of his living family, and the breakdown of his relationship in Cairns which he found had led to deterioration in his personal circumstances, mental state, and a descent into drug misuse. He noted positively that since being remanded the appellant had signed up for rehabilitation courses, was keen to recommence work, and maintained a supportive relationship with his 16-year-old daughter who would be present upon his release. [22] On the comparative authorities, the sentencing magistrate distinguished Dance on the basis that the offender in that case was only 17 years of age, and that his youth had been a very important, if not the most important, sentencing factor. He further noted that there had been expert psychological evidence in Dance supporting good prospects of rehabilitation in the community, neither of which features were present for the appellant. Of the authorities relied upon by the Police Prosecutor, he identified Taylor as imposing the shortest head sentence of two years, noting that the offender in that case was 22 years of age, had been sentenced for 10 offences, was in full-time employment at the time of sentence, and was found by the Court of Appeal to have had a greater claim on mitigation than the appellant before him. The sentencing magistrate stated he would not elevate the sentence beyond Taylor. [23] The head sentence of 2 years imprisonment was carried by the most serious offence of enter premises and commit a break at Earlville on 15 October 2025, with lesser concurrent sentences for the other offending as follows: (a) Charge 1 - Enter Premises and commit indictable offence by break: 8 months imprisonment. -- 7 of 15 -- 7 (b) Charge 2 - Enter premises and commit indictable offence: 18 months imprisonment. (c) Charge 3 - Enter premises with intent to commit and indictable offence: 6 months imprisonment. (d) Charge 4 – Offence of driving etc while relevant drug is present in blood when driver not the holder of a driver licence: 3 months licence disqualification. Conviction recorded but not further punished. (e) Charge 5 – Driving motor vehicle without a driver licence Disqualified by Court order: 2 years licence disqualification. Conviction recorded but not further punished. (f) Charge 6 – Enter premises and commit indictable offence by break: 24 months imprisonment. (g) Charge 7 – Enter premises with intent to commit the indictable offence: 6 months imprisonment. (h) Complaint and summons – Breach of probation order: $100 fine referred to SPER. Re-sentenced by conviction recorded but not further punished. Did the learned magistrate misapprehend the facts and circumstances of the offending by identifying charge 6 as the most serious offence to carry the head sentence, which is outside the permissible range? [24] The appellant contends that by setting such a high sentence to be carried by Charge 6 of entering premises and commit indictable offence by break, the learned magistrate may have misapprehended that the offending was in relation to the car, and did not include the offence of breaking the gate or yard. [25] The respondent contends that the learned magistrate properly confined the offending as a constructive break into the car to commit the indictable offence of stealing the items from that car. [26] It appears that the point has arisen from the persistent anachronistic practice of framing the sentencing schedule as a narrative of the evidence and investigation, rather than clearly identifying the relevant facts constituting the offence. For Charge 6 the sentencing schedule provides: No Reference Numbers Offence Detail 6 Occ #: QP2501845582 BCS#: 2504784447 Mag Id. MAG00172091253 Charge 4 of 4 Offence Date: 15/10/2025 Act & Short Title: [CC] 421(2)&(3) Enter premises and commit indictable offence by break Arresting Officer: #4044868 O'BRIEN, Jack Offence Particulars: Charge 4 of 5: [CC] 421(2)&(3) Enter premises and commit indictable offence by break The victim is RWD Electrical. On the 13th of October 2025, staff from RWD Electrical advised Police that at 2:51am that morning, an adult male was captured on CCTV footage within the business premises carrying a pry bar and wearing a backpack. Staff found that the premises was entered through a gate that'd been broken by an offender/s. Staff -- 8 of 15 -- 8 advised that a work vehicle's canopy was left unlocked within the locked and gated yard. The mentioned items were stolen from the canopy. 5 x Makita batteries 2 x Makita hammer drill 1 x Roll of 1.5mm electrical cable 2 x Roll of 2.5mm electric cable 1 x Roll of 6mm electric cable 1 x Makita multi oscillating tool 1 x Makita grinder power tool 1 x Makita folding torch 1 x Makita impact driver Police reviewed CCTV footage provided by staff. Police immediately identified the adult male as the defendant due to proportionate build, clothing, headwear and covering over right-side calf. The defendant was wearing a large backpack. Police reviewed CCTV footage at 2:16am that morning that captures the defendant riding his bicycle whilst wearing the same clothing, backpack and calf covering within about 25 meters from his Parole address. This footage of the defendant riding his bicycle to within 25 meters of his Probation & Parole address suggests the defendant was coming and going with stolen property from the victim business considering the amount of property stolen. Restitution is sought for the business for the victim business who are at a loss of $3000 in tools, $3000 in cable and $1000 to repair the premises fence. On the 16th of October 2025 about 1:15am, the defendant was located unlawfully in an industrial premises at Woree and was placed under arrest. The defendant declined to answer questions in relation to charge 4. [27] It is tolerably clear that the charge is properly brought under ss 421(2) and (3) of the Criminal Code 1889 (Qld) in relation to the vehicle as being the relevant "premises", entry to which was effected by breaking into the canopy, which had been left unlocked, and the indictable offence committed was the stealing of the vehicle's valuable contents. [28] In that context, I agree that the gate was not the subject of the relevant "break", and that neither the surrounding land nor the gate or fence fell within the definition of "premises" under s 418 of the Criminal Code 1889 (Qld), in contrast to the broader definition of "premises" in s 1 of the Code.10 It seems to me that the inclusion of the appellant’s entry by breaking of the gate was included for mere context, and much of the remaining information was not part of the offence. [29] I am unable to discern any remark by the learned magistrate that he approached the case any differently. True it is that the parties and the court used comparative cases relating to premises comprising commercial buildings, and I do not accept that this is erroneous. Where a commercial vehicle is used as an integral part of a commercial undertaking for critical transport, storing the tools, equipment, and assets essential to the conduct of that business, it occupies a significant functional role like a commercial building used for the same purpose. The security of valuable trade assets is equally at risk, business operations are equally disrupted, and the costs of replacement, repair, and insurance consequences follow in much the same way as they would from a break-in to fixed commercial premises. The form of the premises, whether vehicle or building, is less significant than its function as the repository of the enterprise's tools and assets, and the harm caused when that security is violated. The circumstances here involved a vulnerable commercial vehicle, parked within a locked and gated 10 Cf. R v Smith [2009] 1 Qd R 239 at [26] & 33. -- 9 of 15 -- 9 yard, from which valuable tools, equipment and assets critical to the conduct of the commercial undertaking were stolen. Of course, each case will turn on its own facts, but in this case, when considering the nature of the premises, I think that a commercial vehicle can be treated similarly to a commercial building of those qualities. [30] For the reasons below, I have concluded that a head sentence of 24 months imprisonment was not disproportionate to the gravity of count 6 for the offence of entering premises and commit indictable offence by break. And even allowing for some uplift adequate to accommodate the overall criminality in the context of concurrent sentencing, I conclude that it was not an excessive head sentence.11 Did the learned magistrate apply the principles that a sentence of imprisonment should only be imposed as a last resort and that a sentence that allows the offender to stay in the community is preferable? [31] Sub-sections 9(2)(a)(i) and (ii) of the Penalties and Sentences Act 1992 (Qld) applied to this case. That is, “a sentence of imprisonment should only be imposed as a last resort” and “a sentence that allows the offender to stay in the community is preferable”. [32] There is no doubt that the offending warranted the imposition of a sentence of imprisonment as the last resort. But the critical issue is whether consideration was given to the second statutory limb in s 9(2)(a)(ii) to prefer a sentence that allows the appellant to stay in the community. [33] Neither advocate referred to the statutory preference in s 9(2)(a) of the Act that the appellant be allowed to stay in the community. But it seems plain that the circumstances of the case plainly warranted a term of imprisonment, which was common ground of both advocates and the learned magistrate, all likely cognisant of the statutory requirement. [34] I am not satisfied that the approach has resulted in an error in the exercise of the sentencing discretion. Did the learned magistrate fail to take give due effect to the plea of guilty in setting the parole release date? [35] The appellant contends that that the learned sentencing magistrate failed to give due effect to the appellant’s plea of guilty and mitigating circumstances in setting a parole release date at one-third of the sentence. [36] The appellant points to the following matters going to the exercise of the discretion: that the appellant was a mature man who turned to offending later in life in the context of crisis; he had failed at rehabilitation while on probation; he presented as a good candidate for a short period in actual custody and supervision on parole for a lengthier period, and that a short period was sufficient in principle to achieve the aims of specific and general deterrence. [37] The respondent maintains that one-third of a period of imprisonment already represents a reduction of the period deemed appropriate by statute, namely half, and 11 R v Cooney [2019] QCA 166 -- 10 of 15 -- 10 that another sentencing judge may have imposed a more lenient sentence with a parole release date at a time earlier than one third of the head sentence is insufficient. The respondent highlights the aggravating features that attend the whole of the offending as including: (a) The appellant was a mature man with a relevant criminal history; (b) The appellant was subject to a 15 month probation order imposed just two months prior for strikingly similar offending; (c) The offending was committed on six separate occasions; (d) The appellant wore disguises or makeshift coverings to minimise the risk of him being identified; (e) Property was damaged during the course of some of the offending; (f) The total quantum of property stolen was significant, in the order of $13,500; (g) When police spoke to him, the appellant proffered a false version that “tradies told him that anything he could find on the ground was his for taking”; (h) When arrested, the appellant did not make any admissions in relation to any of the offences; (i) The pleas of guilty entered by the appellant were in the face of an overwhelming prosecution Crown case, in circumstances where the offences were for the most part captured on CCTV that implicated the appellant. [38] Section 13 of the Act provides that in imposing a sentence on an offender who has pleaded guilty, a Court must take that plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. Sub-section 13(3) of the Act states: “When imposing the sentence, the Court must state in open Court that it took account of the guilty plea in determining the sentence imposed”. [39] In his sentencing remarks, the learned magistrate made specific reference to the appellant having entered a plea of guilty and how it was taken into account, saying: “You have pleaded guilty. The prosecution accept that, and I concur, that your pleas of guilty are early. By pleading guilty, you have disposed of the criminal proceedings expeditiously. You’ve facilitated the administration of justice. Your plea of guilty has a utilitarian value: it saved the community and the court the time, cost, and the witnesses the ordeal of having to attend court and give evidence. Your sentences are significantly discounted having regard to your early pleas of guilty.” [40] Setting an earlier parole date will be treated as a reduction in the offender’s sentence for s 13 of the Act.12 It is now well settled that there is and ought not be a fetter of the sentencing judge’s discretion in setting a parole release date more or less than one-third. It remains open to a sentencing judge to reflect both the plea of guilty and other mitigating factors by setting parole release at one-third of the head sentence.13 12 R v Corrigan [1994] 2 Qd R 415; [1993] QCA 417; R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, 423 [23]. 13 R v Sumner [2022] QCA 8. -- 11 of 15 -- 11 The extent of the mitigation will vary depending on the circumstances of the case.14 In R v Ungvari,15 White JA acknowledged at [30] that “as a matter of general practice in this jurisdiction, the one-third mark of the sentence of imprisonment is seen as an appropriate starting point to recognise a plea of guilty. It may be adjusted up or down as particular circumstances warrant.” [41] It seems to me that the timing of the parole release date at one-third was a sound exercise of the discretion, and warranted in the circumstances here, not just having regard to giving effect to the appellant’s plea of guilty as indicating responsibility, contrition and remorse and the level of his cooperation with the police and prosecution in saving victims and community cost. But, he was a mature offender, with characteristics of failed opportunities of rehabilitation and a relevant criminal history, the nature and circumstances of offending here, the need for condign punishment with impacting imprisonment and a complementary need for supervised rehabilitation and treatment on release. [42] I am not satisfied that the learned magistrate erred in giving effect to the plea of guilty, and further, on my review, a parole release date one-third is warranted here. Is the sentence otherwise excessive? [43] Manifest excess may be exposed, absent of any specific identifiable error, by a consideration of all of 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. [44] The parties have referred the court to the comparative cases of: Atu v Queensland Police Service [2026] QDC 11; R v Bryant [2007] QCA 247; R v Dance [2009] QCA 371; Jones v Queensland Police Service [2022] QDC 281; and Pamtoonda v Commissioner of Police [2021] QDC 207; R v Taylor [2007] QCA 214 and R v Vaughn [2005] QCA 348. [45] In Atu the appellant committed 18 offences between January to April 2025 including dangerous operation of a motor vehicle at 156 km/h in a stolen car while drug-affected and unlicensed; multiple unlawful uses of motor vehicles; entering a dwelling and stealing car keys from a host who had offered him a shower; using those keys to steal and drive the complainant's car; fraud using a stolen credit card; stealing from a bottle shop and an e-bike; entering a laundromat with intent to steal causing $650 damage; possession of methamphetamine, scales and a knife; and two failures to appear. The appellant was 33 years old, had lengthy and relevant criminal history including robbery with violence, burglary, unlawful use of motor vehicles, dangerous operation, rape, and deprivation of liberty, with prior imprisonment on multiple occasions. Methamphetamine addiction spanning a decade. Relapse triggered by partner's miscarriage and emotional difficulties. Traumatic brain injury sustained in the January 2025 crash. Early guilty pleas. Engaging with drug programs in custody. On appeal, Charge 10 of enter premises was unchanged at 18 months imprisonment. The head sentence 30 months was maintained but restructured with cumulative sentences. with parole at one-third. 14 R v Woods [2004] QCA 204 and [8] 15 R v Ungvari [2010] QCA 134 -- 12 of 15 -- 12 [46] Bryant, involved nine property offences, namely breaking into five business premises and a warehouse, receiving stolen property, and fraud committed between April 2005 and January 2007. Total loss approximately $6,485. Identity established by DNA from blood left at scenes. Much of the offending was committed while on bail and on probation. The male appellant was aged 35, with an extensive criminal history for property offences dating to 1991, mostly in Victoria, including robbery, theft, burglary, fraud, and drug offences. Multiple prior terms of imprisonment. Described by the sentencing judge as a serious and serial property offender and likely confirmed recidivist. On appeal the overall sentence was reduced to 4 years imprisonment, parole eligibility after 18 months. [47] In Dance, the 17 to 18 year old appellant, offended between December 2007 and September 2008, with 19 indictable and 3 summary offences across three indictments, all while on probation and later on bail. Offending included breaking and entering (including the home of a 71-year-old former employer), unlawful use of motor vehicles, burglary, fraud (using stolen cheques), wilful damage, and dangerous driving at speeds up to 150 kph in 60 kph zones. He made full admissions throughout. A final shoplifting incident occurred in September 2008 while apparently intoxicated. He had a criminal history of three counts of unlawful use of a motor vehicle, resulting in two year’s probation, no conviction recorded. Three subsequent bail breaches. Never previously imprisoned beyond 12 hours in a watch house. He experienced a difficult background with his alcoholic parental separation, physical abuse by both father and stepfather, and was raised by grandparents. He had below-average intellect and understanding of social norms. By sentencing, he was in stable full-time employment, living with family friends, and had not re-offended since February 2009. The psychologist assessed rehabilitation prospects as reasonable, warning that custody risked entrenching criminal behaviour. On appeal, the Court found the sentencing judge failed to apply principles that imprisonment is a last resort and a community sentence is preferable and gave insufficient weight to his youth and rehabilitation. The 18-month head sentence was within range, but the parole date was replaced with immediate release. [48] In Jones, the appellant committed 15 street and property offences between January– April 2022, including charge 1 of entering premises and committing an indictable offence by breaking into a real estate office at Palm Cove and stealing cash and jewellery); attempted unlawful entry of vehicles; wilful damage; receiving tainted property; public nuisance; drug possession; knife possession; and breach of probation. Some offending committed while on probation and bail. The female appellant was aged 42 with a prolific criminal history spanning over two decades including 42 prior convictions for entering premises and burglary, 38 for stealing, and numerous other property, drug, and violence-related offences. She had a history of domestic violence victimisation and deprivation. Methamphetamine dependence underlying recidivism. Mother killed in a domestic violence incident but demonstrated renewed commitment to rehabilitation supported by evidence from Red Cross and Sisters Inside. On appeal the overall sentence of 15 months imprisonment attaching to charge 1 was affirmed with a parole release date varied to one-third mark. [49] In Pamtoonda, the 27 to 28 year old aboriginal appellant committed 26 offences over 11 months, all committed on bail. Core offending included: breaking into a restaurant at 2am to steal alcohol; stealing from a man asleep on a footpath; four public nuisance offences while intoxicated (including chasing a woman with scissors); kicking open -- 13 of 15 -- 13 an elderly man's door demanding alcohol then striking him with a bottle and sewing machine case causing a bleeding head wound (May 2020); breaching a police protection notice within 30 minutes of it being issued; eight bail reporting breaches; stealing alcohol from two bottle shops; and repeatedly punching a woman to the ground in a park while heavily intoxicated (BAC 0.129%), stopping only when tackled by police. He had relevant criminal history including juvenile property convictions, then extensive adult property and dishonesty offending multiple short imprisonment terms. The most significant was 4 years imprisonment for burglary, enter premises by break, and attempted armed robbery. He had 16 previous adult convictions for enter premises by break. He struggled with alcohol addiction from age 16, worsening after his brother died. He was educated to Grade 8, largely unemployed, with two young children. He expressed remorse by letter with plans to return to the community and address addiction. On appeal, the original head sentence of 3 years imprisonment carried on the entire premises charge, with a parole release fixed one-half, although towards the upper end of range was upheld. [50] In Taylor, the appellant faced 22 offences comprising breaking or attempting to break into an aquatic centre, small businesses, a school tuckshop, and a state school — committed between February and May 2005. Total property stolen or damaged was approximately $9,119. Twelve of the 22 offences were committed after release on bail. Co-offenders were juveniles. The male appellant was aged 20 at the time of the offending and 22 at sentence, with a limited criminal history (minor drug offences). He volunteered involvement in 20 of 22 offences to police. He was in full-time employment at sentence, lived stably with his mother for 18 months prior to sentence. On appeal, his sentence was reduced to 2 years imprisonment on each set of offences suspended after 8 months for a 3-year operational period on one indictment, and a parole release date was fixed approximately 8 months on the other. [51] In Vaughan, the appellant was dealt with for one count of breaking and entering restaurant premises at Spring Hill and stealing cash trays, in company with others at 2:30 am. A crowbar was used. Damage of approximately $2,549.70. He was aged 25, and had an extensive criminal history for similar offences from age 17, including multiple prior convictions for breaking and entering both dwellings and vehicles, and four separate periods of actual imprisonment. Previous sentences included intensive correction order, suspended sentences (twice breached), and community service. Subject to an intensive correction order at the time of offending. He had no real work history, two infant children and poor rehabilitation prospects. The sentence of 3 years imprisonment, suspended after 18 months, with an operational period of 5 years was upheld on appeal. [52] Whilst analysis of closely comparable cases often provides valuable guidance, those proffered, here and below, have relative limited 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. They must be considered in the context of the different combinations, nature and serious of the offending compared to the appellant’s offending involving past-like offending, and reoffending while on probation. Ultimately, the appropriate sentence will necessarily depend on the particular circumstances of the offending and the degree of culpability of the offender. It is instructive to look at the appellant’s particular circumstances and the combination of offences in this case. His offending occurs in disobedience to a probation order -- 14 of 15 -- 14 and ranges to include the more serious offending in the entering premises to commit indictable offences apparently driven by his lifestyle and drug use. The gravamen of his offending is found in his target of commercial building and cars, stealing valuable property and tools critical to carrying on the commercial business, resulting in financial damage, and disruption costs. Matters of personal and general deterrence are particularly relevant with prevalence of the offending. The court must also look at the totality of the appellant’s criminal behaviour and ask itself what is the appropriate sentence for all the offences, was it just and appropriate pursuant to s 9 of the Act. [53] It seems to me that the head sentence of 2 years imprisonment, whilst at the higher end of the range, is not an excessive sentence outside the permissible range for Count 6 in the circumstances of the case. In the absence of any identifiable error in the sentencing discretion, there is no ground for the Court to vary the sentence. [54] I am therefore bound to confirm the decision of the trial magistrate and dismiss the appeal. Order [55] For these reasons, I order that the appeal is dismissed. Judge DP Morzone KC -- 15 of 15 --