Enever v Queensland Police Service [2026] QDC 40

DISTRICT COURT OF QUEENSLAND CITATION: Enever v Queensland Police Service [2026] QDC 40 PARTIES: ENEVER, Jacob John (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 2889 OF 2025 (Brisbane District Court) DIVISION: Civil PROCEEDING: Appeal pursuant to s. 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: Order pronounced and reasons published on 27 March 2026 DELIVERED AT: Brisbane HEARING DATE: 26 February 2026 JUDGES: McCarthy KC DCJ ORDERS: 1. The appeal is allowed. 2. The orders that the terms of imprisonment imposed on 10 October 2025 be suspended after serving a period of three months is set aside, and lieu thereof it is ordered that each term of imprisonment is suspended forthwith. 3. No order as to costs. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was sentenced on offences of the dangerous operation of a car and the driving of a car over the middle alcohol limit but not over the high limit – where the sentencing outcome imprisoned the appellant for a term of twelve and three months respectively to be suspended after serving three months for an operational period of two years and additionally disqualified him from holding or obtaining a driver’s licence for twelve months – whether the requirement to serve time in actual custody was excessive in all the circumstances – where factual submissions were received “from the bar table” – whether the magistrate erred in having regard to facts that were not part of the offence – whether the magistrate erred in having regard to harm done to another road user – whether the magistrate gave no real weight to relevant features in mitigation – where -- 1 of 12 -- 2 hardship was a feature in mitigation LEGISLATION: Criminal Code (Qld) s. 328A. Evidence Act 1977 (Qld) s. 132C. Justices Act 1886 (Qld) ss. 222, 223, 225. Penalties and Sentences Act 1992 (Qld) ss. 9, 15. Transport Operations (Road Use Management) Act 1995 (Qld) ss. 79, 79(1F), 83. CASES: Allesch v Maunz (2000) 203 CLR 172. Chakka v Queensland Police Service [2024] QCA 213. Gartner v Brennan [2016] WASC 89. House v The King (1936) 55 CLR 499. McDonald v Queensland Police Service [2018] 2 Qd R 612. R v Bolton [2000] QCA 175. R v D [1996] 1 Qd R 363. R v Galeano [2013] 2 Qd R 464. R v Olbrich (1999) 199 CLR 270. R v RBE [2021] QCA 146. R v Rogan [2021] QCA 269. R v Wackerow [1998] 1 Qd R 197. Rongo v Commissioner of Police [2017] QDC 258. Taylor v Commissioner of Police [2017] QDC 236. COUNSEL: H Farr for the appellant C McMullan for the respondent SOLICITORS: Jones + Associates for the appellant Office of the Director of Public Prosecutions for the respondent Introduction [1] The appellant was convicted by his pleas of guilty on 10 October 2025 before the Magistrates Court in Brisbane to two offences, the dangerous operation of a car1 and the driving of a car over the middle alcohol limit but not over the high limit2. Both offences occurred on 24 January 2025. [2] The sentences imposed by the magistrate were concurrent terms of imprisonment of twelve and three months respectively and to order each of those terms of imprisonment be suspended after serving three months. The operational period of the orders of suspension in each case was two years. The magistrate ordered that the 1 s. 328A(1) of the Criminal Code (Qld). 2 s. 79(1F)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld). -- 2 of 12 -- 3 appellant be further disqualified from holding or obtaining a licence for a cumulative period of twelve months upon his present disqualification. [3] On 10 October 2025, the appellant was granted bail pending the outcome of this appeal. [4] The respondent conceded that the appeal should be allowed. Nature of the Appeal [5] The appeal has been brought pursuant to section 222 of the Justices Act 1886 (Qld), and so it is by way of re-hearing on the record.3 By the Act, the appeal is subject to the constraint that it is to be conducted on the “sole ground that a…punishment was excessive or inadequate”.4 The onus is upon the appellant to show that there is some relevant error in the decision under appeal.5 The principles from House v The King6 apply to an appeal against the exercise of discretion. [6] In Chakka v Queensland Police Service7, her Honour Justice Brown, with whom her Honour President Mullins joined in her reasons, identified a divergence of approaches adopted in relation to the meaning of section 222(2)(c) in the District Court.8 [7] In Rongo v Commissioner of Police9, his Honour Judge Devereaux (as his Honour then was) observed that the real question to be determined was whether the sentence was excessive, and the demonstration of specific error made by the Magistrate assisted only to the extent that it may have explained why the sentence was excessive. That approach has found favour in Chakka v Queensland Police Service, and it is required by the appellant to demonstrate error in the exercise of the discretion of the kind recognised by House v The King, and that the error has resulted in a sentence which is excessive.10 3 s. 223(1) of the Justices Act 1886 (Qld). 4 s. 222(2)(c) of the Justices Act 1886 (Qld). 5 Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. 6 House v The King (1936) 55 CLR 499 at 504-505. 7 [2024] QCA 213. 8 Chakka v Queensland Police Service, ibid at [49]. 9 [2017] QDC 258 at [22]-[24]. 10 Chakka v Queensland Police Service, ibid at [87]-[88]. -- 3 of 12 -- 4 [8] In order to succeed in an appeal under section 222(2)(c) it must not only be shown that there was an error in the decision but that the sentence was excessive.11 [9] The notice of appeal identifies a single ground, that the sentences were manifestly excessive. [10] Through submissions to this court, the appellant advanced reasons explaining how the magistrate made the error, in concluding that the appellant was required to serve actual time in custody. The appellant contended that the magistrate took into account irrelevant facts, described as a “misapplication of the agreed facts”, and failed to take into account material considerations personal to the appellant. Factual Allegations [11] The appellant was a mature man of 31 years at the time of offending. The appellant had a relevant prior history of traffic infringements, with a significant number of entries for speeding. He had no prior entries for either dangerous or careless driving nor for driving whilst under the influence of drugs or alcohol. His most recent speeding offence was on 2 January 2025. [12] The appellant’s criminal history revealed offences of violence for which he was ordered to probation for twelve months on 9 November 2022. The appellant completed that order and had not appeared before the court since that time. The appellant had never been to gaol. [13] The factual circumstances of the offending were presented in the form of a schedule and summarised by the police prosecutor. [14] At 5:30 pm, in peak hour traffic, the appellant drove his ute on Dayboro Road, Kurwongbah. It was a busy roadway, heavily populated by other traffic. The dash cam footage obtained by investigators, showed the appellant crossing double white lines on to the wrong side of the road, overtaking three cars. To perform this manoeuvre, the appellant drove into the pathway of oncoming traffic. A driver was forced to take evasive action and to move out of its laneway. The appellant corrected his path of travel momentarily, avoiding collision, before returning to the wrong side of the road, again across double white lines, to overtake four more cars. 11 Ibid. -- 4 of 12 -- 5 [15] Forty-two minutes later, at 6:12 pm, some 11 kilometres away, the appellant drove through a red turning arrow at a four-way intersection and crashed into a Toyota Landcruiser causing that vehicle to flip on its side. Due to the collision, both drivers were then transported to hospital. The driver of the Landcruiser suffered whiplash injuries to her neck and back. At the time of sentence, it was recorded that she continued to attend weekly physio sessions and was presently advised that she could not lift anything over five kilograms. Understandably the injury was affecting her everyday life, and she suffered pain and discomfort. [16] The certificate of the analysis of the blood sample of the appellant at the hospital recorded the equivalent of a 0.109% blood alcohol concentration. [17] The appellant could not recall his driving when questioned by police on 22 June 2025. The appellant merely recalled that he had been drinking alcohol at a friend’s home before driving. The Sentence Hearing [18] The appellant provided a letter of apology to the court, in which the appellant expressed remorse. The appellant wrote, “[T]o think I have hurt someone and put others life’s (sic) at risk the way I did is disgusting, embarrassing and quite frankly I am ashamed of it, and I wish nothing for good health for them, I can’t explain how sorry I am for what has happened to them, I am extremely sorry to the core”. [19] The appellant’s elderly grandmother (84 years old) wrote of her reliance upon her grandson, for help around her home since her husband had passed away. The appellant lived with his grandmother, and she stated that she relied upon her grandson for her safety and wellbeing. His grandmother informed the court that she could not live within her home by herself. [20] A letter from his cardiothoracic surgeon dated 20 August 2025, informed the court that the appellant had “a lump in his chest that needs surgical resection” and reported that the surgery “can happen from 30 days to 90 days”. The appellant informed the court through his letter that the lump was a tumour. -- 5 of 12 -- 6 [21] A letter from a general practitioner reported of the appellant’s “long history of depression” and the appellant wrote in his letter that he “struggled” with his mental health. [22] The prosecution did not contest any of these facts. [23] The prosecution submitted that the principle that a term of imprisonment is “a last resort” did not apply as “The offence before the court resulted in physical harm to another person”. The prosecution submitted for a term of imprisonment of twelve months but did not press for any of that term to be served in actual custody. [24] The prosecution referred to two authorities to provide more of less comparable yardsticks from which the magistrate could determine the appropriate penalty, Taylor v Commissioner of Police12 and R v Bolton13. [25] The appellant sought a combination of fine and ordered probation, though conceded that “a suspended sentence” was within range. [26] The magistrate observed that the appellant’s plea was to be “taken into account” and specifically that plea showed that he was taking personal responsibility for his offending and it “means that the victim of your offending does not have to come to court to give evidence”. The magistrate accepted that the appellant was remorseful. [27] In an orthodox way the magistrate recognised the purposes for sentencing. The magistrate recognised that denunciation and community protection were purposes in sentencing to be afforded attention in the circumstances of the appellant’s offending. [28] The appellant’s course of driving was described as “prolonged and it was over a long distance” in the remarks. The magistrate observed that “…the course of driving spans some eleven kilometres in distance, on and off in peak hour traffic, when the roads are saturated with road users between 5:30 pm and 6:12 pm. And it involved a severe accident in which a vehicle flipped, and the victim has been left with the whiplash injury, pain and discomfort, a rib injury. People on more than one occasion had to take evasive action because of you”. 12 [2017] QDC 236. 13 [2000] QCA 175. -- 6 of 12 -- 7 [29] The magistrate remarked that the appellant had been diagnosed with depression and borderline personality disorder, was a carer for his grandmother, had given up alcohol, and still had a lump to be removed to confirm whether it was cancerous. The magistrate recognised that the appellant was attending to mental health issues through a psychologist, but the details of the treatment was unknown. [30] The magistrate concluded these observations in the following terms, “[S]o I have to weigh up all of these factors and circumstances and the law. Having done so, in this case, my view is that a term of imprisonment is warranted”. [31] The magistrate observed that “appellate courts…have often stated…that a parole order is also a rehabilitative order and a supervisory order”, however imposed a suspended sentence which was suspended “[S]lightly less than the usual one-third mark so that it maximises the time you are supervised and given proper direction”. Consideration [32] It is evident that the tendered schedule of facts did not contain any statements concerning the harm done to the driver of the Landcruiser. The appellant now complains that the presentation of this evidence, effectively from the bar table, whilst not objected to, should not have been considered in the sentencing. [33] Section 15 of the Penalties and Sentences Act 1992 (Qld) provides that, in imposing a sentence, a court may receive any information, or a sentencing submission made by a party to the proceeding, that the court considers appropriate to enable it to impose a proper sentence. [34] As observed by his Honour Justice Burns in R v RBE14, “[I]t is a matter for the judge to decide what information or submissions it receives and, if accepted as reliable, the weight to be attached. This provision enshrines the long-standing practice of the courts to permit considerable flexibility in the presentation of evidence and other information to a sentencing court”15. [35] The essential character of sentence hearings is accusatorial real and accordingly where some aspect of the “information” is disputed by the offender, it is for the 14 [2021] QCA 146 at [22]. 15 Ibid at [22]. -- 7 of 12 -- 8 prosecution to prove that “information” on which it relies, adverse to the interests of the offender. [36] In Queensland, the common law has been modified by the operation of section 132C of the Evidence Act 1977 (Qld). Relevantly here, the sentencing judge was permitted to act on an allegation of fact that was admitted or not challenged. It was permitted to accept the assertions “from the bar table”, although the sentencing judge was under no obligation to accept such assertions, even if no evidence was led to the contrary, and even if the opposing party made no submissions about the matter.16 [37] The appellant did not object to the reception of the assertion and through his tendered letter and his counsel’s submission that “he is absolutely lucky that the injuries - or someone didn't get hurt worse”, implicitly accepted that he had harmed the driver of the Landcruiser. The acceptance then of the assertions was unremarkable. [38] However, it is important to consider the charges to which the appellant entered his pleas. [39] The charges read as follows: (a) That on the 24th day of January 2025 at Kurwongbah in the State of Queensland [he] dangerously operated a vehicle namely a car in a place namely Dayboro Road, Kurwongbah. (b) That on the 24th day of January 2025 at Narangba in the Magistrates Court District of Caboolture in the State of Queensland [he] whilst he was over the middle alcohol limit but not over the high alcohol limit did drive a motor vehicle namely a car on a road namely Main Street, Narangba and it is averred that the said car is a motor vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Main Street, Narangba is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 16 R v Olbrich (1999) 199 CLR 270 at [25]; R v Galeano [2013] 2 Qd R 464 at [46]. -- 8 of 12 -- 9 [40] Both the tendered statement of facts and the identified place of the offending restricted the conduct subject of the offending to Dayboro Road and Main Street respectively. [41] Relevantly, in R v D17 the court recognised that common sense and fairness determine what acts, omissions and matters constitute the offence and the attendant circumstances for sentencing purposes, and whilst such acts, omissions and matters may themselves technically constitute a separate offence, they are not for that reason necessarily excluded from consideration.18 The same court observed that such acts, omissions or matters, which it would be permissible otherwise to take into account, may not be taken into account, if the circumstances would establish, such did not form part of the offence for which the person was convicted, or established a more serious offence than the offence for which the person was convicted, or a circumstance of aggravation for which the person was not convicted.19 [42] In R v Wackerow20 the court grappled with this notion of “conduct which did not form part of the offence”. His Honour Chief Justice Macrossan observed that a person may be punished for other actions, in what commonsense would regard as occurring as a part of a continuous episode “but this will not be so if they constitute a more serious offences or offences than the offences which have been charged”.21 His Honour Justice Pincus observed that the concept extended in the case of conspiracy, to actions such as robbery, as that action was committed in implementation of the conspiracy.22 His Honour Justice Byrne observed that the other uncharged acts of indecently dealing with a girl were not part of the offence charged.23 [43] The appellant contended that the characterisation of the conduct of the appellant as a continued course of criminally culpable driving culminating in a collision some forty-two minutes later, conflated the criminality and infected the sentencing process. I accepted this submission. 17 [1996] 1 Qd R 363. 18 Ibid at 404-405. 19 Ibid. 20 [1998] 1 Qd R 197. 21 Ibid at 202-203. 22 Ibid at 206. 23 Ibid at 210. -- 9 of 12 -- 10 [44] The appellant contended that the reference to the acts of disobedience of the red turning arrow and collision with the Landcruiser (and consequent harm) were not permitted to be considered in the sentencing for the convicted offence of driving of a car over the middle alcohol limit but not over the high alcohol limit. The appellant contended that whilst the uncharged conduct of the appellant was simultaneous with the drink driving, the conduct was distinctly different in nature to the offence, it was not alleged that the conduct occurred as a consequence of the appellant’s blood alcohol concentration and that conduct constituted more serious offences.24 [45] The respondent conceded these contentions were correct in the factual circumstances in this matter. [46] The quality of the driving of the appellant resulted in harm to the driver of the Landcruiser. It is arguable that an offence of driving of a car over the middle alcohol limit but not over the high alcohol limit, requires regard to be had in sentencing to the attendant consequences of the driving, whether that be potential or actual risk to other road users, as a matter of commonsense and fairness. I determined that would depend upon established facts demonstrating that there was a causal connection between the recorded blood alcohol concentration and the attendant consequences, and that the conduct should not properly have been the subject of more serious charges. [47] As I accepted, neither of these features could be shown to be present in this matter, and so the consequent harm and disobedience of the red turning arrow should not have been considered in determining the sentencing outcome. It is important to note that the relevant blood alcohol concentration was not suggested to be any operational part of the culpable driving, the subject of the first charge of dangerous operation of a motor vehicle. In the way in which the prosecution case was presented, it was not made clear that the collision was consequent of the appellant’s blood alcohol concentration, but rather it seemed to be suggested that the collision was consequent of a short deliberate passage of culpable driving in disobedience of road conditions and the safety of other road users. 24 Driving whilst under the influence of liquor or a drug, s. 79(1) of the Transport Operations (Road Use Management) Act 1995 (Qld); Careless driving of a motor vehicle, s. 83(1) of the Transport Operations (Road Use Management) Act 1995 (Qld). -- 10 of 12 -- 11 [48] The appellant contended that the magistrate gave no real weight to other relevant features in mitigation. Contrary to the submissions made, the magistrate did take into account the responsibilities held by the appellant in caring for his grandmother and the concerns regarding the impending surgery where his still had a lump to be removed to confirm whether it was cancerous. [49] It should not be inferred that a failure to provide a detailed exposition of the relevance of such matters to the sentencing process, revealed any lack of appreciation of its significance. Magistrates are expected to undertake the work of that busy court with expedition and with a degree of informality appropriate to the disposition of a large volume of cases. Consequently, appeal courts should not scrutinise the reasons for decisions given by magistrates with an eye too keenly attuned to the identification of error, and some temper is afforded to the level of detailed exposition of reasons. The essential requirement is that the reasons of a magistrate must disclose the underlying intellectual process which has given rise to the conclusions reached.25 [50] No submissions were made by the appellant in the proceedings below that regard should be had to the absence of further offending in the nine-month period between the date of the offences and the sentence. The relevance of such a submission would identify that the appellant had demonstrated prospects of rehabilitation. The magistrate accepted that proposition and it would be unduly critical of the remarks of a presiding judge to observe a failure to mention a feature of the case, to which neither party emphasised or even referred to in submissions. [51] I have however concluded that the identified specific errors advanced the submission that the sentencing disposition was excessive, and properly explained how the magistrate arrived at a sentencing disposition that was excessive. [52] Whilst it was proper to recognise the seriousness of the short passage of driving, recklessly endangering the lives of other road users in Dayboro Road, and the further potential harm represented by his intoxicated condition when driving in Main Street, there were features in this case which informed the court that the 25 Gartner v Brennan [2016] WASC 89 at [58]. -- 11 of 12 -- 12 appellant had good prospects of rehabilitation and actual incarceration impacted his care of his grandmother for whom he was her primary caregiver26. [53] The more or less comparable yardsticks presented in the authorities of Taylor and Bolton served to illustrate that deliberately reckless driving by mature offenders with substantial relevant traffic records may result in condign punishment, including actual incarceration. [54] As his Honour President Sofronoff observed in R v Rogan27, “[G]eneral deterrence is largely met by the head sentence, as has been the sentencing practice in Queensland” 28. The purposes of denunciation, punishment, deterrence and community protection can be met through the imposition of a “head sentence” of imprisonment in this matter. [55] I have concluded that the sentences imposed were excessive, in that the appellant was required to serve actual time in custody. The imposition of the sentences of imprisonment of twelve and three months respectively are to be suspended forthwith for an operational period of two years.29 The ordered disqualification period remains. Orders [56] The appeal is allowed. [57] The orders that the terms of imprisonment imposed on 10 October 2025 be suspended after serving a period of three months is set aside, and lieu thereof, it is ordered that each term of imprisonment is suspended forthwith. [58] No order as to costs. 26 s. 9(2)(fb)(i) of the Penalties and Sentences Act 1992 (Qld). 27 [2021] QCA 269. 28 Ibid at [18]. 29 s. 225(1) of the Justices Act 1886 (Qld). -- 12 of 12 --