Atu v Queensland Police Service [2026] QDC 11

DISTRICT COURT OF QUEENSLAND CITATION: Atu v Queensland Police Service [2026] QDC 11 PARTIES: JOSIAH JAMES JOHN ATU (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO: APPEAL NO: 87/25 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: Orders made on 5 February 2026. Reasons delivered 13 February 2026. DELIVERED AT: Cairns HEARING DATE: 5 February 2026 JUDGE: Morzone KC DCJ ORDER: 1. Application for extension of time to appeal allowed. 2. Appeal allowed. 3. The sentence and orders of the Magistrates Court made in Cairns on 8 July 2025 is varied as follows: (a) For charge 2, the sentence of 18 months imprisonment is substituted instead of 24 months imprisonment. (b) For charge 5, the sentence of 15 months imprisonment is substituted instead of 24 months imprisonment. (c) For charge 10, the sentence of 9 months imprisonment is substituted instead of 30 months imprisonment. (d) For charge 11, the sentence of 12 months imprisonment is substituted instead of 30 months imprisonment. (e) The sentence for charge 1 will be served cumulatively with the sentence for charge 11, but the sentence for charge 1 will be served -- 1 of 23 -- 2 concurrently with the sentences for the other charges. 4. Otherwise, the sentences and orders, including the declaration of presentence custody and parole release order are affirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – ERROR OF LAW - review pursuant to s 222 Justices Act 1886 – Extension of time – Sentence proceedings – Whether the learned magistrate give undue weight to the criminal history – Whether the learned magistrate mischaracterise the nature of the offending that carried the head sentence of 30 months imprisonment – Whether the learned magistrate did not consider the relevant comparatives and authorities to reach an excessive sentence – Resentence. LEGISLATION: Justices Act 1886 (Qld), ss 222, 223, 224 & 227 Penalties and Sentences Act 1992 (Qld), s 9. Criminal Code Act 1899 (Qld), s419(1) & s419(5) 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 Director of Public Prosecutions v Ottewell [1970] AC 642 Dinsdale v The Queen (2000) 202 CLR 321 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 519 House v The King (1936) 55 CLR 499 Jones v Queensland Police Service [2022] QDC 281 Kelly v Commissioner of Police [2017] QDC 156 Kentwell v R (2014) 252 CLR 60 King v Commissioner of Police [2019] QDC 131 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 Norbis v Norbis (1986) 161 CLR 513 Radcliffe v Queensland Police Service [2019] QDC 144 R v Aston [No 2] [1991] 1 Qd R 375 R v Coleman [2015] QCA 176 R v Dance [2009] QCA 371 R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219 R v Nagy [2004] 1 Qd R 63 R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 R v Rigney [1996] 1 Qd R 551 -- 2 of 23 -- 3 R v Tait [1999] 2 Qd R 667 R v Thiemann [2015] QCA 195 Teelow v Commissioner of Police [2009] QCA 84 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 Tryhorn v Commissioner of Police [2022] QDC 194 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: SOLICITORS: Aboriginal and Torre Strait Islander Legal Service for the Appellant. The Office of Director of Public Prosecutions for the respondent. Summary [1] On 8 July 2025, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Cairns, of 18 offences over several occasions across four months comprising dangerous operation of a motor vehicle, unlawful use of a motor vehicle, unlawful entry, property, stealing and drug offences, and he was sentenced to concurrent sentences amounting to a total period of 30 months of imprisonment with a parole release date set one third of the sentence being 9 February 2026. [2] The appellant applies to extend the time to appeal and seeks to appeal his sentence on the grounds that it is excessive generally or because the sentencing magistrate: 1. Placed too much weight on the nature of the offending that carried the head sentence. 2. Placed too much weight on the appellant’s criminal history. 3. Did not consider the relevant comparatives and authorities. [3] The respondent does not oppose the application to extend time to appeal, but otherwise opposes the appeal. The respondent argues that the sentence was within the permissible range for concurrent sentences for the whole offending. [4] I allow the application for leave to extend time since the appellant has shown sufficient reason for the delay and has demonstrated that it would be in the interests of justice to grant the extension of time sought, having regard to the merit of the appeal. [5] On my review, I’m not persuaded that his Honour allowed the criminal history to overwhelm his sentencing discretion, nor am I persuaded that the effective sentence of 30 months imprisonment is excessive and outside the permissible range for the whole of the offending. But in my view, neither charge 10 nor 11 is an appropriate vehicle to carry the uplifted head sentence to account for the other concurrent -- 3 of 23 -- 2 sentences, and the sentence of 30 months imprisonment is excessive and outside the permissible range for each of those charges. I have concluded that a sentence of nine months imprisonment for charge 10 and 12 months imprisonment for charge 11 reflects the criminality of the charges, and the latter being ameliorated to give effect to the order for that , that sentence ought to be served cumulatively with the sentence for charge 1. [6] Therefore, I am bound to allow the appeal and re-exercise the sentence discretion on appeal, applying the totality principle and guided by the most closely comparable cases. In doing so, I will vary the sentence to maintain the overall effective sentence of 30 months imprisonment, but order that the varied sentence for charge 1 of 18 months will be served cumulatively with the varied sentence of 12 months imprisonment for charge 11, but the sentence for charge 1 will be served concurrently with the sentences for the other charges to equate to an overall effective sentence of 30 months or two and half years imprisonment. [7] Accordingly, on 5 February 2026, I allowed the application for extension of time to appeal, allowed the appeal and made orders varying the sentence. These are my reasons. Extension of Time [8] Pursuant to s 222(1) of the Justices Act 1886 (Qld), the applicant had one month after the date of the order in which to appeal. Under s 224(1)(a), a District Court judge may, on the application of a party, extend the time for filing a notice of appeal. [9] This appeal was filed 17 days out of time on 5 September 2025 and the applicant applies for an extension of time. [10] In R v Tait,1 the Court of Appeal explained the considerations relevant to granting an extension of time at [29] as follows: “... the court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. It may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all cases the court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay.” [11] The appellant has explained the delay in the application. His lawyers misnamed the appellant when addressing the critical correspondence sent to the correctional centre. There was delay until the error was realised, remedied, and the documents were resent and returned. 1 R v Tait [1999] 2 Qd R 667. -- 4 of 23 -- 3 [12] The respondent does not oppose the application. There was no prejudice identified by the respondent and my provisional assessment is that there was merit in the appeal and I have dealt with the appeal grounds below. [13] In my view, the applicant has shown sufficient reason for the delay and has demonstrated that it would be in the interests of justice to grant the extension of time sought having regard to the issues raised in the appeal. I allow the application for leave to extend time. [14] The parties have agreed that the appeal hearing should proceed and be determined in these reasons. Appeal [15] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). [16] 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. [17] 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.2 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.3 In doing so, it ought to 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.4 [18] 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”.5 To succeed, the appellant must establish some legal, factual or discretionary error.6 Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence. [19] The decisions of House v The King7 and Kentwell v R8 distinguish cases of specific error and indiscernible excess or inadequacy. 2 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]. 3 White v Commissioner of Police [2014] QCA 121 at [5]-[8]. 4 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]. 5 R v Morse (1979) 23 SASR 98; R v Lomass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606. 6 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. 7 House v. The King (1936) 55 CLR 499 at 504 and 505. 8 Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). -- 5 of 23 -- 4 [20] The High Court held in House v The King9 that: “It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [21] The High Court in Kentwell v R10 held: “In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.” [22] 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.11 By contrast, in the case of absent identifiable specific error, the appellate court ought to only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.12 [23] 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 was miscarried, resulting in an excessive sentence.13 In that 9 (1936) 55 CLR 499 at 504 and 505 10 Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). 11 Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). 12 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]. 13 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. -- 6 of 23 -- 5 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.14 Sentence Proceedings [24] The sentence proceeded on an agreed statement of facts, backgrounded by the appellant’s circumstances, criminal history, and performance on past sentences and orders. [25] The offending can be summarised in chronological order (differing from the charge number order) as follows. Offending on 13 January 2025 [26] Charge 1: Dangerous Operation of a Vehicle. On 13 January 2025, around 5:40 pm, the appellant drove a stolen car at high speed on the highway in a 100 km/h zone under clear conditions. The car crossed lanes, nearly hit another vehicle, went off an embankment, rolled, and stopped in a field. Police found the appellant agitated and possibly on drugs; paramedics assessed minor impairment and took the appellant to hospital. Blood tests showed methamphetamine (0.45 mg/L) and amphetamine (0.03 mg/L). The car was rented and stolen days earlier without permission. Inspection showed no faults; data revealed speed up to 156 km/h before crash with full throttle. A doctor said the drugs likely caused erratic driving, though injuries may have contributed. The appellant had no valid licence. [27] Charge 2: Unlawful Use of Motor Vehicles - Use. Relates to the facts in charge 1 of unauthorized use of the stolen car, which was destroyed in the crash. [28] Charge 3: Driving While Relevant Drug Present in Blood or Saliva. Relates to the facts in charge 1 of drugs in blood while driving. [29] Charge 4: Driving Without a Driver Licence - Repeat Offender. Relates to the facts in charge 1 of no valid licence at the time. Offending on 3 March 2025 [30] Charge 5: Unlawful Use of Motor Vehicles - Use. Overnight on 2-3 March 2025, a car was stolen from a transport company depot and reported. That afternoon, police spotted it in Cairns, used a tyre device to stop it, and found it abandoned. Witnesses pointed out the appellant running away; police chased and arrested the appellant with the keys. The appellant had no permission, refused interview, and was bailed for court on 20 March 2025. Offending of 6 March 2025 [31] Charge 6: Possessing Dangerous Drugs. Around 10:30 pm on 6 March 2025, police at a hotel in Cairns saw the appellant try to leave suspiciously. Checks showed the appellant was wanted for burglary; they arrested the appellant. Bag search found 14 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 14 (1936) 55 CLR 499, 504 and 505. -- 7 of 23 -- 6 under 1g of suspected methamphetamine, working digital scales for drugs, and a 10cm knife in a sheath. Items seized; the appellant refused questions and was charged. [32] Charge 7: Possessing Relevant Substances or Things. Relates to the facts in charge 6: possession of digital scales for drugs. [33] Charge 8: Possession of a Knife in a Public Place. Relates to the facts in charge 6: knife in backpack at the hotel. Offending of 10 March 2025 [34] Charge 9: Fraud - Dishonestly Gain Benefit. Around 1:20 am on 10 March 2025, the victim's co-offenders got a ride, then stole cards and items. Later that day, the appellant used a stolen credit card at a petrol station to buy $65.95 in goods, caught on CCTV. Police arrested the appellant at a tavern two days later; the appellant made partial admissions and got a notice to appear in court on 21 March. Offending of 12 March 2025 [35] Charge 15: Stealing After Previous Conviction. On 12 March 2025 at 7:06 pm, the appellant and a co-offender entered a liquor store, took three bottles of spirits worth $193, hid them, and left without paying. CCTV identified the appellant; refused interview when arrested on 10 April. Offending of 17 March 2025 [36] Charge 12: Enter Premises with Intent to Commit Indictable Offence. Just after 4:45 am on 17 March 2025, the appellant and co-offender arrived at a laundromat with tools. They tried to break into a locked staff room, damaging the door and frame, then broke a dryer to steal coins, causing $650 damage. [37] Charge 13: Willful Damage. Arises out of the facts in charge 11 of the damage to the laundromat door, frame, and dryer. Offending on 20 March 2025 [38] Charge 17: Failure to Appear in Accordance with Undertaking. Having been bailed on 3 March 2025 to appear in court on 20 March 2025, the appellant didn't show, so a warrant was issued, and he was arrested on 10 April 2025. Offending on 21 March 2025 [39] Charge 18: Failure to Appear in Accordance with Undertaking. Having been further bailed on 6 March 2025 to appear in court on 21 March 2025; the appellant didn’t show, so a warrant issued before his arrest on 10 April 2025. Offending on 23 March 2025 [40] Charge 14: Stealing After Previous Conviction - 23/03/2025. At 12:23 am on 23 March 2025, the appellant took an electric bike worth $1,500 from outside a pizza shop and rode off without permission. Offending on 8 April 2025 -- 8 of 23 -- 7 [41] Charge 10: Enter Dwelling and Commit Indictable Offence. Around 5 pm on 8 April 2025, the appellant was permitted into the victim's home to use the shower. The appellant stole two sets of car keys. Offending on 9 April 2025 [42] Charge 11: Unlawful Use of Motor Vehicles - Use in Company. Arises from the facts in 17 of using the stolen keys to take and drive the victim's car without permission. It was seen around areas, then abandoned; a witness saw the appellant drop it off with one key. Police recovered it. Offending on 10 April 2025 [43] Charge 16: Receiving Tainted Property. At 7:38 am on 10 April 2025, police entered a unit for other warrants and found the appellant. Bag search revealed a watch and five bank/gift cards not belonging to the appellant. The appellant admitted they were not his. [44] The prosecutor outlined a series of 18 offences committed by the appellant between January 13, 2025, and April 10, 2025, emphasising their seriousness and non-trivial nature. Aggravating factors highlighted included the appellant's drug-affected state during the dangerous operation, lack of a driver's license, high-speed driving in a stolen vehicle, narrowly avoiding a head-on collision, protracted offending over months, impact on victims, and the volume of offences with persistent dishonesty. The prosecutor detailed the 33-year-old appellant's criminal history, including prior offending and sentencing for four robberies with violence, burglaries, dangerous operations, unlawful uses of vehicles, rape, and deprivation of liberty, with some offenses committed on parole. His traffic history showed prior unlicensed driving and dangerous operations with disqualifications. Mitigation was acknowledged in the guilty plea, but the prosecutor stressed that specific and general deterrence, denunciation, and community protection due to the prevalence of such offences. [45] The prosecutor relied upon the comparative case of Radcliffe v Queensland Police Service [2019] QDC 144 and distinguished Jones v Queensland Police Service [2022] QDC 281, to urge for a head sentence at the higher end the range of 30 to 33 months' imprisonment, to be attached to the enter dwelling (charge 10) and linked unlawful use of a motor vehicle (charge 11) offences committed on 9 and 10 April, with an uplift to reflect overall criminality. Specific terms included 15 months for the dangerous operation and one month cumulative for each failure to appear, with lesser concurrent sentences. Driving disqualifications sought were 12-15 months for the dangerous operation (noting a prior six-month disqualification in 2021), three months for unlicensed driving (higher end of mandatory one to three months), and six to nine months for drug-driving, with the unlicensed and drug-driving disqualifications to be cumulative on the dangerous operation (though the prosecutor deferred to the magistrate's view on cumulation). Forfeiture of drugs and related items was requested. [46] The appellant's solicitor emphasised the appellant's addiction to methamphetamine as the underlying, but not mitigating, cause of all offences, spanning about a decade, with periods of sobriety. She noted a four-year gap in offending after his 2021 release from prison due to prison medical programs, followed by a relapse triggered by his partner's miscarriage, family difficulties, emotional distress, and sleep issues. She -- 9 of 23 -- 8 conveyed the appellant’s acknowledgment of his impaired decision-making and remorse, describing himself as "a different man" when using drugs and viewing custody as beneficial for sobering up and accessing support. The appellant proffered some explanations for his offending - for the January 13 2025, dangerous operation and related offenses, he was asked by a friend to return a vehicle to its owner whom he knew indirectly, unaware it was stolen; he had used drugs earlier that day, fell asleep at the wheel due to exhaustion and impairment, crashed, and suffered a traumatic brain injury and coma, leading to memory gaps and heavier post-hospital drug use. For the March 3 2025, unlawful use, heavy drug use affected recall. For the April 8 enter dwelling and unlawful use, the appellant was invited in by a family friend for a shower and shelter; he alleged waking to indecent assault, panicking, showering, and then taking car keys to escape. Other offences around March (e.g., possessions, stealings, failures to appear) were linked to spiralling addiction and brain injury effects. In mitigation, the appellant’s solicitor commended the court to his early guilty pleas, along with his engagement drug and addiction programs while in custody, determination to rehabilitate, and plans to live with family in Cairns, prioritise supports over employment, and avoid reoffending. Then she submitted that the offending was opportunistic and drug-driven, not premeditated or violent, with no weapons involved. [47] The solicitor distinguished Radcliffe (cited by the prosecutor), and preferred Jones v Queensland Police Service [2022] QDC 281 as highly comparable and referred to other cases of King v Commissioner of Police [2019] QDC 131; Tryhorn v Commissioner of Police [2022] QDC 194 and Kelly v Commissioner of Police [2017] QDC 156, to contend for an overall effective sentence of 12-15 months' imprisonment with parole after one-third for totality, proportionality, rehabilitation support, and community protection. [48] The learned magistrate sentenced the appellant to an effective head sentence of 30 months imprisonment, which was carried by charge 10 of entering a dwelling and committing an indictable offence by stealing car keys on 8 April 2025, and charge 11 of unlawfully using the stolen motor vehicle the next day, with concurrent lesser terms imposed for the remaining offences. He was considered that these offences were the most serious and drew the longest term because they represented the culmination of a protracted and serious course of criminal conduct that stretched over nearly three months from January 2025 to April 2025. The offending involved repeated unlawful use of stolen motor vehicles, including one incident of dangerous operation of a motor vehicle in January 2025 that the magistrate described as particularly serious. In that case, the appellant drove at 156 kilometres per hour, crossed continuous double lines into oncoming traffic, narrowly avoided a head-on collision, and ultimately caused the vehicle to roll down an embankment. His honour highlighted that the appellant was unlicensed at the time, had methylamphetamine and amphetamine in his system, and the crash fortunately resulted in no serious injury to himself or innocent members of the public despite extensive vehicle damage. He also highlighted the circumstances of the other charges of further unlawful use of stolen vehicles including one on 3 March 2025 that ended only after police deployed a tyre deflation device, fraud by using a stolen credit card to make a small purchase, stealing alcohol from a bottle shop, entering a laundromat with intent to steal and causing $650 of damage to a coin machine without successfully taking the money, taking an e-scooter worth $1,500 from a pizza shop, and receiving tainted property in the form of multiple stolen debit and credit cards. The court noted that several offences exploited the trust of -- 10 of 23 -- 9 good Samaritans who had offered lifts or accommodation, which reflected particularly poorly on the appellant. [49] The learned magistrate referred to the appellant’s extensive criminal history for similar property and driving offences, including previous terms of imprisonment for unlawful use of motor vehicles, dangerous operation, and serious property crimes. Given this background, together with the persistent and risky nature of the current offending, the court found that imprisonment was clearly appropriate despite being an order of last resort. Specific deterrence was required because of the prior record, while general deterrence was needed to signal the community’s view of such behaviour. [50] In the result, the learned magistrate sentenced the appellant to concurrent sentences as follows: 1 Dangerous Operation of a Motor Vehicle 18 months imprisonment Disqualified – 15 months 2 Unlawful Use of a Motor Vehicle 24 months imprisonment 3 Drive without a licence – repeat offender 3 months imprisonment Disqualified – 3 months 4 Drive with relevant drug present in blood 3 months imprisonment Disqualified – 3 months 5 Unlawful Use of a Motor Vehicle 24 months imprisonment 6 Possession of Dangerous Drugs 1 month imprisonment 7 Possession of Relevant Substances 1 month imprisonment 8 Possession of a knife in a public place 1 month imprisonment 9 Fraud 6 months imprisonment 10 Enter Dwelling and Commit Indictable Offence 30 months imprisonment 11 Unlawful Use of Motor Vehicle 30 months imprisonment 12 Enter Premises and Commit 18 months imprisonment 13 Wilful Damage 6 months imprisonment 14 Stealing after previous conviction 6 months imprisonment 15 Stealing after previous conviction 6 months imprisonment 16 Receiving tainted Property 3 months imprisonment 17 Failure to Appear Not further punished 18 Failure to Appear Not further punished [51] His Honour took into account of the appellant’s early guilty pleas to reduce the penalty that would otherwise have been imposed and entitled the appellant to parole at the one-third mark. 89 days of pre-sentence custody was declared between 10 April 2025 and 7 July 2025 as time already served under the sentence, and a parole release -- 11 of 23 -- 10 date was set at 9 February 2026. His Honour gave effect to that declaration by setting a parole release date of 9 February 2026. Convictions were automatically recorded on all charges. Appeal Grounds [52] The appellant contends that the sentence was excessive generally or because the sentencing magistrate: 1. Placed too much weight on the nature of the offending that carried the head sentence. 2. Placed too much weight on the appellant’s criminal history. 3. Did not consider the relevant comparatives and authorities. [53] The respondent maintains that the learned magistrate had proper regard to the criminal history, appropriately set the head sentence on the most serious offending with concurrent lesser sentences for the balance, and imposed a head sentence which was within the permissible range for the whole offending. Did the learned magistrate give undue weight to the criminal history? [54] It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion. Section 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.” [55] Subsection (11) provides that “Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.” [56] These provisions reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2) 15 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 15 Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14] -- 12 of 23 -- 11 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.” [57] The appellant has an extensive criminal history, predominantly to drug and property offending, with prior similar convictions, relevantly here: (a) On 14 April 2010, he received concurrent sentences for two counts of robbery with actual violence, robbery and theft, amounting to an effective sentence of 3 years imprisonment with a parole release set at one third, being 23 August 2010, having already served almost seven and a half months in pre-sentence custody. (b) On 3 July 2012, he was sentenced to a cumulative term of 18 months’ imprisonment with a parole eligibility date set at 2 January 2013. (c) On 26 June 2024, he received concurrent sentences for offences of burglary and commit offence, and other property offences, amounting to an effective sentence of two years imprisonment with a parole release date set one third, being 24 December 2014, having served about two months in presentence custody. (d) On 22 October 2015, he received cumulative sentences of 50 days for Fail to Stop Vehicle, and 18 months for Dangerous Operation of a Motor Vehicle, respectively, and a parole eligibility date was set at 20 November 2016. (e) On 18 March 2020, he received concurrent sentences for rape and deprivation of liberty, amounting to an effective sentence of four years and six months with a parole eligibility date set for 18 May 2021. (f) On 22 February 2021, he received concurrent sentences for Burglary, Unlawful Use of Motor Vehicle, Dangerous Operation of a Motor Vehicle and six charges of Stealing, for an effective sentence of 12 months imprisonment, with a parole eligibility date set for 22 February 2021. [58] The appellant was subject to imprisonment orders from 14 April 2010 until approximately 20 February 2018, then he was free of any imprisonment or supervisory orders for about two years from then until 18 March 2020, before reoffending and being sentenced to further imprisonment from 18 March 2020 until 17 September 2024. He started reoffending in the current offences only four months after that. [59] Almost three years and six months had elapsed between the offending subject of this appeal and his most recent convictions on 22 February 2021 for similar offending by way of Unlawful Use of Motor Vehicle and Dangerous Operation of a Motor Vehicle. [60] About the appellant’s criminal history, the learned magistrate remarked: “One also needs to consider your criminal history. You have an extensive history for like offending for which orders for imprisonment -- 13 of 23 -- 12 have been imposed in the past. I note that orders for serious property offending, such as the enter premises offences before the court today, have received lengthy periods of imprisonment. You have received orders for imprisonment with respect to the charges of unlawful use of a motor vehicle. You also have received orders for imprisonment in the past for dangerous operation of a motor vehicle, noting that the most recent of those offences was in 2021. So whilst orders for imprisonment are orders of last resort, they are clearly appropriate in this instance, given your prior criminal history and given the serious nature of the offending conduct over the period of the offending. I will speak briefly to those authorities which have been tendered to the court. I note with respect to the matter of Jones, the offending in that instance, whilst it is serious property offending and considering that Jones had a unenviable criminal history, in my view does not take account of the charges of unlawful use of a motor vehicle and dangerous operation of a motor vehicle. The offending in this instance, in my view, is substantially more serious because of those serious offences which were not evident in the matter of Jones. The matter of Radcliffe, I believe, has more relevance because the defendant in that instance had a number of charges of unlawful use of a motor vehicle. Radcliffe was a younger offender than you and also did not have, in my view, on my reading of the decision, as substantial a criminal history for like offending as you do. So whilst it has been of assistance in formulating the appropriate sentence today, I would consider your offending to be more serious than that of Radcliffe and I would consider your criminal history to be more substantial than Radcliffe. I would also note that Radcliffe was a younger offender. You are a more mature man who, as I said, have been – received orders for imprisonment for like offending in the past. In those circumstances, my view is that a period of 30 months, or two and a-half years, should attract to the most serious of the offences before the court. I am in agreeance with Ms Verwey that the offences from the 8th and 9th of April are the most serious of the offences, and there is some uplift in terms of imposing 30 months, or two and a-half years, for those offences, which is appropriate considering your offending behaviour overall. It is also reflective of the fact that I intend to convict and not further punish on the fail to appear charges. So that is linked to some uplift in terms of the head sentence in those circumstances. I will shortly go through the orders that are made, but there are lesser concurrent terms of imprisonment imposed for the other offences. But, in my view, given the serious nature of the offending, the protracted nature of it, your criminal history, there is clearly a need for -- 14 of 23 -- 13 specific deterrence in this instance, as well as sending a message to the wider community about how seriously the court views this offending behaviour, particularly from someone who has a relevant and substantial history for offending of a like nature.” [61] Having regard to his Honour’s remarks and characterisation of the appellant’s past offending and the nature and extent of the offending before him, it seems to me that his Honour had appropriate regard to the appellant’s criminal history. He properly considered the appellant’s previous convictions as an aggravating factor, having regard to the nature of the previous conviction and relevance to the current offences and the time elapsed since those convictions. I am not persuaded that the appellant’s criminal history overwhelmed his sentencing discretion to impose a sentence disproportionate to the gravity of the current offending, nor am I persuaded that the effective sentence of 30 months imprisonment is excessive and outside the permissible range for the whole of the offending. [62] However, for reasons which follow, in my respectful view, at the behest of both parties, his Honour erroneously mischaracterised the offending of 8 and 9 April (charges 10 and 11) as the most serious of the offences to carry the uplifted terms of 30 months imprisonment to reflect the overall offending, which was outside the permissible range for those offences. Did the learned magistrate mischaracterise the nature of the offending that carried the head sentence of 30 months imprisonment? [63] The appellant asserts that the learned magistrate mischaracterised and placed undue weight on the offending in charges 10 and 11 as the most serious offending to carry the uplifted head sentence. But the respondent maintains that the learned magistrate fairly characterised those offences as objectively more serious than the other offending and appropriate vehicles to carry the head sentence. [64] The learned magistrate was required to have regard to the nature and seriousness of the offence.16 [65] Charge 10 of “Enter dwelling and commit indictable offence” was brought under s 419(5) of the Criminal Code where the appellant committed the offence of stealing while in the dwelling. In the bench charge sheet, it was averred that: “That on the 8th day of April at Cairns North in the State of Queensland one [the appellant] was in the dwelling of [the complainant] and stole in the dwelling.” [66] The schedule of facts described the offending this way: “On 8 April 2025 at about 5 pm the [appellant] in this matter has attended the address of 366-370 McLeod Street, Cairns North. That at the time he was allowed access to the address there by the occupant and victim for this matter … That during this time the victim allowed the [appellant] to access the shower and other facilities inside the address. Whilst inside the address the [appellant] has taken the victim's car keys (two sets) belonging to a Suzuki Swift with 16 Penalties and Sentences Act 1992, section 9(2)(c). -- 15 of 23 -- 14 Queensland…. The [appellant] left the address sometime later. The victim reported the theft to police and confirmed that while the [appellant] was allowed into the address, he did not have permission to take the keys for the vehicle. That when the [appellant] was located and arrested on the 10th day of April 2025, he still had possession of second key that had been taken that day - he declined to be interviewed for this and other matters.” [67] By charge 11 of Unlawful Use of Motor Vehicle, it was averred in the bench charge sheet that: “That or on about the 9th day of April 2025 at Gordonvale in the State of Queensland one [the appellant] unlawfully used a motor vehicle namely car without the consent of [the complainant] the person in lawful possession thereof….And [the appellant] was in company with 1 or more persons.” [68] The schedule of facts described the offending this way: “The [appellant] has used the keys that he stole to access the victim's vehicle - a silver coloured Suzuki Swift …. The [appellant] then decamped from the location in the victim's vehicle. The victim later reported the theft to police and confirmed that the [appellant] did not have permission to take or use the vehicle. This stolen vehicle was then sighted at various locations around Cairns, Gordonvale and East Trinity. The vehicle was later dumped at an address in Gordonvale on the 9th day of April at about 2pm. Police attended and recovered the vehicle at about 11:15pm. A person located with the vehicle at the time police arrived confirmed in an interview with police that they witnessed the [appellant] dropping off the vehicle at that time leaving the key with the vehicle. One of the sets of keys was recovered at that time. That when the [appellant] was located and arrested on the 10th day of April 2025 - he still had possession of second of the keys that had been taken that day - he declined to be interviewed for this and other matters.” [69] During the course of the sentence, both the police prosecutor and the appellant’s solicitor urged the court to apply the head sentence to these charges. The prosecutor contended for a head sentence at the higher end of the range of 30 to 33 months' imprisonment, with an uplift to reflect overall criminality, in contrast to the appellant’s solicitor, who contended for a sentence of 12 to 15 months’ imprisonment with parole-release after one-third to reflect the “totality of the total criminality of the offences”. [70] The learned magistrate acceded to the prosecutor’s submission that charges 10 and 11 committed on 8 and 9 of April 2025, respectively, were the most serious of the offences, to carry the head sentence of 30 months, or two and a half years imprisonment to reflect the appellant’s offending behaviour overall. In doing so, his Honour seemed to conflate the in-dwelling offending under s 419(5) of the Criminal Code subject of charge 10, with one of burglary comprising entry with intent to commit an offence under s 419(1) of the Criminal Code, and also the offending in charge 11 of unlawful use of a motor vehicle as follows: -- 16 of 23 -- 15 “There is then the offences from the 8th and 9th of April, when it seems a good Samaritan had offered you an ability – somewhere to sleep and somewhere to shower. On the 8th of April, you were invited to those premises and, as a result of you staying at those premises, you have then taken two sets of car keys and driven that person’s motor vehicle, which is the charge of unlawful use of a motor vehicle. So there is the offence of entering those premises with intent to steal, or committing the offence of stealing those car keys, and then using that motor vehicle. Again, as much – can I say with a person who had offered the lift to you and other co-offenders, it seems good Samaritans – you have taken advantage of the trust that they had placed within you in committing those offences and reflects very poorly upon you.” [71] Neither below nor on appeal was the court assisted by any comparative cases in respect of burglary offending under s 419(5) of the Criminal Code subject of charge 10. Instead, the focus was upon offending by way of unlawful use of a motor vehicle, subject of charges 2, 5 and 11. It seems to me that the nature and seriousness of such offending in charge 10 is distinguishable from offending involving an element of intent to steal at the time of entry being the species of burglary under s 419(1) of the Criminal Code, and various circumstances of aggravation,17 or any degree of sophistication or pre-planning, in breach of trust in that sense. The appellant while in the dwelling of the complainant, opportunistically committed the offence of stealing his car keys, followed by using those keys to unlawfully drive the car. [72] In my view, in my respectful opinion, I think that the learned magistrate mischaracterised the nature and seriousness of the offending in charges 10 and 11 as the most serious offending to carry the head sentence. Even so, it is difficult to see how such an overall sentence could be carried by any of the offences before the court, without considering accumulation. Did the learned magistrate not consider the relevant comparatives and authorities to reach an excessive sentence? [73] The appellant here argues that the appropriate sentencing range for the Unlawful Use of Motor Vehicles was around 15 to 18 months, and that 24 months is an appropriate uplift pursuant to R v Nagy [2004] 1 Qd R 63. The respondent maintains the prosecutor’s submission in support of the court’s approach below, attaching the head sentence of 30 months imprisonment to charges 10 and 11, as a just and appropriate sentence. [74] Manifest excess may be exposed, absent from 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. [75] The parties have referred the court to the comparative cases of Jones v Queensland Police Service [2022] QDCС 281, Ratcliffe v Queensland Police Service [2019] QCD 144, R v Thiemann [2015] QCA 195 and R v Dance [2009] QCA 371. 17 Contrast s 419(1) of the Criminal Code, and R v Rigney [1996] 1 Qd R 551. -- 17 of 23 -- 16 [76] Jones was a 42 year old prolific property offender with 42 prior convictions for entering premises and burglary type offences. She was sentenced for 15 street and property offences where the head sentence of 15 months imprisonment was imposed on an Enter Premises and Commit Indictable Offence by break. Discussions were had around totality and imposition of a parole release date at the one-third mark. Consideration was given to several other comparative sentences. 15 months imprisonment was considered appropriate given the nature of that offence and the parole release date was brought forward to the one-third mark. [77] Radcliffe was a 26 year old who committed 13 offences involving Unlawful Use of Motor Vehicle and related property and driving offences. Upon appeal he was sentenced to a head sentence of two years imprisonment for the Unlawful Use of a Motor Vehicle with a release on parole at the one-third mark. Ratcliffe had a very challenging upbringing and prior history for like offences. His offending escalated due to involvement in drugs and alcohol. While the offending in Radcliffe was similar to the appellant, the learned Magistrate noted Radcliffe was younger than the appellant, with less history, therefore warranting a higher penalty here. [78] Thiemann was a 26 year old who committed several offences including Unlawful Use of a Motor Vehicle whilst on parole. The offending involved being a passenger in a car, producing a knife, taking the car from the driver and driving away. Another Unlawful Use of a Motor Vehicle including driving a stolen vehicle from NSW to Toowoomba. He had prior convictions for Robbery and Burglary where he received periods of imprisonment with an Eligibility date. He was granted parole two months prior to the offending. It was not disturbed that 18 months was to be imposed for the Unlawful Use of a Motor Vehicle offences. The focus of the appeal was on the structure of cumulative sentence that had been imposed. [79] Dance was aged 17-18 during the offending, committed a series of property and driving offences between December 2007 and September 2008, while on probation and sometimes on bail. Key offences included breaking and entering premises to steal including a community association, residences, and businesses, unlawful use of motor vehicles including aggravated circumstances, wilful damage, burglary, fraud (using stolen cheques), attempted fraud, receiving stolen property, stealing from stores, and dangerous operation of a motor vehicle (involving a high-speed police chase at up to 150 km/h in a 60 km/h zone, overtaking on a hill crest, and running a red light). The offending involved co-offenders, often to steal alcohol or cash, with total losses relatively modest (e.g., $3,000 cheque attempt, $960 cash). He made full admissions to police, including for undetected offences, and pleaded guilty early. He had a difficult upbringing with abusive, alcoholic parents, lived with grandparents then peers involved in antisocial behaviour, and showed signs of cannabis abuse. By the time of sentencing, he was 19, employed full-time, living stably, and had not reoffended since February 2009. A psychologist's report highlighted his immaturity, low intellect, dependency on peers, and better rehabilitation prospects in the community than custody. The Court of Appeal found that the sentence was affected by error in failing to apply the “"last resort"” principle for imprisonment and insufficiently accounting for the applicant's youth and rehabilitation. Whilst the 18- month imprisonment head sentence was affirmed, the appellant was immediately released on parole. -- 18 of 23 -- 17 [80] Whilst analysis of closely comparable cases often provides valuable guidance, those proffered, here and below, have relative comparative value depending on the offender’s 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 combination, nature and seriousness of the offending compared to the appellant’s offending involving domestic violence offending, serious assault of police and obstructing police. 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 against a background of a significant and relevant criminal history. Matters of personal and general deterrence are particularly relevant. 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. [81] When sentencing concurrently, as the learned magistrate sought to do here, it is 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.18 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.19 [82] Whilst I agree with the learned magistrate that a head sentence of 30 months is just, appropriate and proportionate to the gravity of the appellant’s overall offending, even allowing for some uplift adequate to accommodate his overall criminality in the context of concurrent sentencing, it seems to me that sentences of 30 months imprisonment were so severe as to be disproportionate to the gravity of the offending in charges 10 and 11. It seems to me that the sentence range for those offences would not exceed 9 months and 18 months, respectively. Even so, since none of the other offences are capable of carrying a head sentence of 30 months, the learned magistrate needed to consider a cumulative sentencing sentence in accordance with the totality principles. [83] In Mill v The Queen,20 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, 18 Nguyen v The Queen (2016) 256 CLR 656, 677 [64]; R v Nagy [2004] 1 Qd R 63, 72 19 Veen v The Queen [No 2] (1988) 164 CLR 465, 477. 20 Mill v The Queen [1988] 166 CLR 59. -- 19 of 23 -- 18 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?” [84] In The Queen v Crofts21, 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."” [85] The ambit of the totality principle has been extended as explained in The Queen v Beattie, ex parte Attorney-General (Qld)22 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’.” [86] In The Queen v Kendrick,23 Morrison JA (with whom Fraser JA and Henry J agreed) provided a superb analysis of the relevant authorities.24 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.”25 [87] When sentences are required to be served cumulatively, consideration of the aggregate of current sentences and the sentence to be imposed is a necessary precursor 21 The Queen v Crofts [1999] 1 Qd R 386 at 387. 22 The Queen v Beattie, ex parte Attorney-General (Qld) [2014] QCA 206 at [19]. 23 The Queen v Kendrick [2015] QCA 27. 24 The Queen v Kendrick [2015] QCA 27 at [31]-[41]. 25 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. -- 20 of 23 -- 19 to the application of the totality principle to ensure there is an appropriate relativity between the whole criminality and the length of the sentences imposed. In R v Margaritis; Ex parte Attorney-General (Qld),26 Muir JA explained: “[12] The application of the totality principle does not require that there must invariably be some reduction in the accumulation of otherwise appropriate sentences to avoid the so called “crushing” effect. The appropriate course is to arrive at an appropriate sentence and then assess the cumulative effect to gauge whether the overall sentence is disproportionate to the offender’s criminality.” [88] Applying these principles, it seems to me that sentences that ought to be fixed for each offence would be in the order of: 1 Dangerous Operation of a Motor Vehicle 18 months imprisonment Disqualified – 15 months 2 Unlawful Use of a Motor Vehicle 18 months imprisonment 3 Drive without a licence – repeat offender 3 months imprisonment Disqualified – 3 months 4 Drive with relevant drug present in blood 3 months imprisonment Disqualified – 3 months 5 Unlawful Use of a Motor Vehicle 18 months imprisonment 6 Possession of Dangerous Drugs 1 month imprisonment 7 Possession of Relevant Substances 1 month imprisonment 8 Possession of a knife in a public place 1 month imprisonment 9 Fraud 6 months imprisonment 10 Enter Dwelling and Commit Indictable Offence 9 months imprisonment 11 Unlawful Use of Motor Vehicle 12 months imprisonment 12 Enter Premises and Commit 18 months imprisonment 13 Wilful Damage 6 months imprisonment 14 Stealing after previous conviction 6 months imprisonment 15 Stealing after previous conviction 6 months imprisonment 16 Receiving tainted Property 3 months imprisonment 17 Failure to Appear Not further punished 18 Failure to Appear Not further punished 26 R v Margaritis; Ex parte Attorney-General (Qld) [2014] QCA 219, per Muir JA (PD McMurdo J and P Lyons J agreed). -- 21 of 23 -- 20 [89] In reaching those sentences, I have had regard to the conduct of the appellant in the offending, the roles that he played in it, and how the offences otherwise overlap arising from the same or a series of conduct. Having reviewed and considered the aggregate of the appropriate sentences, I think it is just and appropriate and not too crushing or disproportionate that cumulative sentences be imposed by effectively book-ending the series of offending over the three-month period. This warrants some moderation to the sentences for charges 1 and 11, from 21 months to 18 months, and 15 months to 12 months, having regard to the cumulative structure of the sentence. [90] I will order that the sentence for charge 1 of 18 months ought to be served cumulatively with the sentence of 12 months imprisonment for charge 11, but the sentence for charge 1 will be served concurrently with the sentences for the other charges to equate to an overall effective sentence of 30 months or two and half years imprisonment. Resentence [91] Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion having regard to the discussion above. [92] The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) 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 section 9 of the Penalties and Sentences Act 1992 (Qld). [93] 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. For this offending, 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. Order [94] For these reasons, I allow the appeal and vary the sentences and orders of the orders made in the Magistrates’ court as follows: 1. Application for extension of time to appeal allowed. 2. Appeal allowed. 3. The sentence and orders of the Magistrates Court made in Cairns on 8 July 2025 is varied as follows: (a) For charge 2 – Unlawful Use of a Motor Vehicle - the sentence of 18 months imprisonment is substituted instead of 24 months imprisonment. -- 22 of 23 -- 21 (b) For charge 5 – Unlawful Use of a Motor Vehicle - the sentence of 15 months imprisonment is substituted instead of 24 months imprisonment. (c) For charge 10 - Enter Dwelling and Commit Indictable Offence - the sentence of 9 months imprisonment is substituted instead of 30 months imprisonment. (d) For charge 11 - Unlawful Use of a Motor Vehicle - the sentence of 12 months imprisonment is substituted instead of 30 months imprisonment. (e) The sentence for charge 1 will be served cumulatively with the sentence for charge 11, but the sentence for charge 1 will be served concurrently with the sentences. 4. Otherwise, the sentences and orders, including the declaration of presentence custody and parole release order are affirmed. Judge DP Morzone KC -- 23 of 23 --