BH v Commissioner of Police [2021] QDC 175

DISTRICT COURT OF QUEENSLAND CITATION: BH v Commissioner of Police [2021] QDC 175 PARTIES: BH (appellant) v COMMISSIONER OF POLICE (respondent) FILE NO/S: 56/21 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 31 August 2021 DELIVERED AT: Cairns HEARING DATE: 29 July 2021 JUDGE: Fantin DCJ ORDER: 1. Appeal dismissed. 2. No order as to costs. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL –– APPEAL AGAINST SENTENCE - where the appellant was sentenced to two years imprisonment for one charge of aggravated contravention of domestic violence order – where the sentence was ordered to be served cumulatively on a term of imprisonment of two years and six months he was then serving - where the appellant had a relevant criminal history - whether the combined effect of the period of imprisonment and the parole eligibility date renders the sentence manifestly excessive Legislation Domestic and Family Violence Protection Act 2012 (Qld), s 177(2) Justices Act 1886 (Qld) s 222 Penalties and Sentences Act 1992 (Qld) s 9, s 156A, s 159A, s 160C, s 160F, Corrective Services Act 2006 (Qld) s 180 Cases Teelow v Commissioner of Police [2009] Qd R 489 -- 1 of 14 -- 2 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 601 Ratcliffe v Queensland Police Service [2019] QDC 144 R v Ikin [2007] QCA 224 R v Lawley [2007] QCA 243 Markarian v The Queen (2005) 228 CLR 357 R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 R v Major Ex Parte A-G (Qld ) [2012] 1 Qd R 465 LJS v Sweeney [2017] QDC 18 RJD v Queensland Police Service [2018] QDC 147 DYN v Queensland Police Service [2020] QDC 47 R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 OWL v Queensland Police Service [2021] QDC 5 R v Whitely [2021] QSC 154 R v Stewart [2021] QSC 187 R v Bahcehan [2019] QCA 278 R v WBK (2020) 4 QR 110 R v Berns [2020] QCA 36 Postiglione v The Queen (1997) 189 CLR 295 R v Baker [2011] QCA 104 R v Sprott; Ex parte Attorney-General (Qld) [2019] 25 QLR R v Jackson [2011] QCA 103 COUNSEL M Benn for the appellant R Boivin for the respondent SOLICITORS Aboriginal and Torres Strait Islander Legal Service for the appellant The Office of the Director of Public Prosecutions for the respondent Background [1] On 5 March 2021 the appellant1 pleaded guilty in the Magistrates Court at Cairns to a single offence of contravention of a domestic violence order, aggravated offence, contrary to s 177(2)(a) of the Domestic and Family Violence Protection Act 2012 (Qld) (DVFPA). The offence had a maximum penalty of 5 years imprisonment. [2] The appellant was convicted and sentenced to two years imprisonment, to be served cumulatively on a term of imprisonment of two years and six months he was already serving, with parole eligibility set at 1 December 2021. [3] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) against the sentence on the ground it is manifestly excessive. [4] For the reasons that follow, I would dismiss the appeal. 1 Given that the offence was a domestic violence offence and the complainant would otherwise be identifiable, I have anonymised the name of the appellant. -- 2 of 14 -- 3 Circumstances of the offending [5] The offence the subject of this appeal was committed in October 2020. The appellant was then 33 years old. He was sentenced in March 2021, by which time he was nearly 34. [6] He had committed the offence while on court ordered parole. To place the offence the subject of this appeal in its proper context, it is necessary to summarise the circumstances of that earlier offending. About one year earlier, on 31 March 2020, the appellant pleaded guilty to assault occasioning bodily harm (domestic violence offence). He was sentenced to a head sentence of two years and six months imprisonment, with a parole release date after serving one third of the sentence. Presentence custody of 134 days was declared as time served under the sentence. The full time expiry date of that sentence was 17 May 2022. At the same time, he was also sentenced for three charges of contravention of domestic violence order (aggravated offence) on three separate dates against the same complainant. For those, he was sentenced to lesser concurrent sentences of 12 months and three months imprisonment. In addition, there was one charge of commit public nuisance, two charges of breach of bail, and one charge of urinating in a public place. [7] The complainant for each of the offences of domestic violence was his former partner and the mother of his children. The offence the subject of this appeal was committed against the same woman. [8] The assault attracting the head sentence of two years six months imprisonment was committed in November 2019. The appellant and the complainant were at a bus terminal. The appellant attempted to speak to the complainant. She fled and he chased her into an intersection. When he caught up to her, he punched her several times to the face and kneed her in her torso, causing her mouth and lips to bleed. The complainant ran into traffic to seek assistance. No other information was placed before the learned Magistrate or this Court about whether the complainant required medical treatment, the extent of her injuries and the circumstances of the other domestic violence offending. I infer that to warrant a head sentence of two years and six months imprisonment, the total criminality of that offending must have been objectively serious. [9] On 4 July 2020, before the appellant’s release on parole, the appellant was named as the respondent to a protection order in favour of the complainant as the aggrieved. It contained the standard mandatory condition that the respondent be of good behaviour and not commit domestic violence towards her. [10] On 17 September 2020 the appellant was released on parole. [11] Within only two weeks of his release on parole, the appellant committed the offence the subject of this appeal against the same complainant. [12] The circumstances of the offending were summarised in an agreed schedule tendered on sentence. [13] On the night of 1 October 2020 the appellant approached a group of family members who were sitting at a table. He walked up to the complainant who was sitting on a chair and struck her to the head. He punched her to the left side of her head with a closed fist, using his right hand. A family member witnessed the assault. The complainant slipped out from her chair due to the -- 3 of 14 -- 4 impact and crawled under the table to get away. She fled to the backyard of the house. The appellant continued to argue with her through the side fence. After about 20 minutes, the complainant returned and entered the house where the appellant said to her “I’m going to put a knife through you”. The complainant fled to the front yard of the house where a witness opened the gate for her and told her to run. The appellant left the front of the house carrying a steak knife, wielding it in a threatening manner. A 13 year old witness, a family member of the complainant, called 000. Police attended the house and were told that the appellant was still inside. When police arrived the witness told them that the complainant had fled, in fear of her life. The appellant was arrested and taken to the watchhouse. He was not questioned because he was heavily intoxicated. Appellant’s antecedents and criminal history [14] The appellant had an eight page criminal history commencing when he was 17 years old. It included many convictions for violence including domestic violence, as well as contraventions of domestic violence orders. It also included multiple breaches of court orders. A relevant summary will suffice. [15] In December 2004 he was convicted of assault occasioning bodily harm committed in July 2004 and sentenced to 12 months imprisonment. [16] In December 2004 he was convicted of assault occasioning bodily harm and contravention of a domestic violence order and sentenced on each to 12 months imprisonment. [17] In January 2007 he was convicted of two breaches of domestic violence order and assault occasioning bodily harm, and sentenced to 12 months probation. [18] In March 2007 he was sentenced in the District Court for property offences and received 100 hours community service. [19] In April 2007 he was convicted of two charges of assault occasioning bodily harm and sentenced to two months imprisonment and 18 months probation. He breached an earlier suspended sentence, which was fully invoked. [20] In October 2007 he was convicted in the District Court of going armed so as to cause fear and fined. [21] In October 2008 he was convicted in the District Court of threatening violence – discharge firearms, going armed so as to cause fear, common assault and assault occasioning bodily harm whilst armed/in company and sentenced to a head sentence of 270 days imprisonment. [22] In May 2009 he was convicted in the District Court of breach of an earlier community service order and resentenced to three months imprisonment. [23] In July 2010 he was convicted in the District Court of assault occasioning bodily harm whilst armed, common assault, serious assault police officer and attempting to pervert justice, and was sentenced to 18 months imprisonment, four months imprisonment, and two months imprisonment, all to be served cumulatively. [24] In December 2010 he was convicted of assault occasioning bodily harm and common assault and sentenced to six months imprisonment with a parole eligibility date. -- 4 of 14 -- 5 [25] In February 2012 he was convicted of breach of a domestic violence order and sentenced to one month imprisonment. This was the start of domestic violence offending against the current complainant. [26] In February 2013 he was convicted of contravention of a domestic violence order and going armed so as to cause fear, and sentenced to four months and six months imprisonment respectively. [27] In 2013, 2014 and 2016 he committed low level alcohol related offences. [28] In December 2016 he was convicted of common assault (domestic violence offence) and sentenced to 12 months probation. [29] In January 2018 he was convicted of two charges of contravention of domestic violence order (aggravated offence) and sentenced to six months imprisonment suspended for 12 months and 12 months probation. [30] In March 2020 he was convicted of assault occasioning bodily harm and three charges of contravention of domestic violence order (aggravated offence). He was sentenced to a head sentence of two years and six months imprisonment for the assault, and lesser concurrent sentences for the contraventions. The circumstances of that offending are summarised earlier. [31] In summary, the appellant’s criminal history reflected regular violent offending over many years. While the sentences imposed suggested that the level of violence committed was not at the most serious level, the persistence and regularity of the violent offending, often in breach of court orders, despite multiple terms of imprisonment requiring actual custody, was very concerning. The offending for which he was sentenced in March 2020 reflected an escalation in seriousness, as did the subject offending only two weeks after his release on parole. [32] The appellant’s criminal history cannot overwhelm, and the sentence imposed must not be disproportionate to, the gravity of the current offence: s 9(11) Penalties and Sentences Act 1992 (Qld) (PSA). Nonetheless, the appellant’s criminal history was a significant aggravating feature on sentence: s 9(10) PSA. It also meant that personal deterrence and protection of the community (including this particular complainant) were particularly important factors. Submissions and sentencing remarks in Magistrates Court [33] It was a late plea, the matter having been listed for trial. [34] The police prosecutor in the Magistrates Court submitted for a term of imprisonment of 15 to 20 months imprisonment imposed cumulatively on the sentence the appellant was already serving. [35] The appellant’s solicitor submitted that the primary issue was one of totality as it was conceded that a period of imprisonment was the only appropriate penalty. He said that the parole eligibility date should be set at the customary one-third mark, taking into account the utility of the defendant’s plea of guilty saving the need for an affected child hearing (for a witness) and a trial. The appellant’s solicitor made no submissions against the term of imprisonment being ordered cumulatively. The solicitor accepted that the bottom end of the prosecutor’s submitted sentence range of 15 months imprisonment cumulative on the already imposed 30 month term -- 5 of 14 -- 6 would result in an appropriate total period of 45 months imprisonment. He submitted that parole eligibility would be set at one third but not more than 40%. [36] The appellant was an Aboriginal man raised in the remote community of Lockhart River. His solicitor submitted that alcohol abuse was prevalent in the appellant’s upbringing and that he had witnessed domestic violence. [37] The appellant had two children with the complainant, aged two and six. He had previously worked as a ranger in the Lockhart River area and had taken steps to work as a ranger again once released. His time in custody had been more difficult because some family members had passed away. [38] The learned Magistrate noted that the maximum penalty was five years, however, when dealt with in the Magistrates Court jurisdiction it was three years. He took into account the appellant’s plea of guilty, albeit a late one. He noted that the appellant committed the offence after being on parole for two weeks, was not a youthful offender, and had very modest prospects of rehabilitation. He noted that domestic violence was prevalent in the community. [39] After referring to the appellant’s criminal history, the learned Magistrate said, referring to the prosecutor’s submission:2 “Her submission was that a penalty in the range of 15 to 20 months, cumulative on the period of imprisonment that you are currently serving was appropriate. I indicated at the outset that I was not bound by that. I would, as the Court of Appeal requires me, exercise the exercise of the sentencing discretion independently. The submission by the prosecutor is simply an expression of opinion. The authorities do assist in relation to setting a yardstick for the range in the context of your offending. In my view, particularly the comments of the Senior Judge Administrator in LJS v Sweeney, certainly indicate that a period of imprisonment in the order of two and a half years would be well within the appropriate exercise of the sentencing range. It is accepted that the imprisonment imposed today ought be imposed cumulative on the term of – the term of imprisonment you are currently serving. The Court of Appeal, in the decision of R v Margaritis requires a sentencing Court to determine a proper sentence – sorry, I think it says an appropriate sentence, then to step back and review it to ensure that it is not disproportionate to the criminality, and if need be, moderate it. Undertaking that exercise, and commencing, in my view, with what properly would have been a head sentence of two years imprisonment, and with the intention of imposing that imprisonment cumulatively on the imprisonment you are currently serving, I moderate it back to a sentence of imprisonment of two years or 24 months.” [40] Whilst the above passage shows no moderation, I accept the parties’ joint submission that this was a slip and a proper construction of his Honour’s sentencing remarks suggests that he started with a nominal sentence of up to two years and six months and moderated the sentence down to two years. Grounds of appeal [41] The appellant seeks to challenge the sentence imposed upon him on the ground that it was manifestly excessive. Within that ground, submissions were advanced based on an alleged 2 Transcript of Decision, Magistrates Court at Cairns, 5 March 2021. -- 6 of 14 -- 7 failure to take into account the totality principle, both in respect of the sentence imposed cumulatively and in setting the parole eligibility date. [42] Specifically, the appellant submits that the nominal starting sentence of two years and six months was too high, that it was insufficiently moderated for totality, and that a parole eligibility date at just less than one half of the total period of imprisonment rendered the overall sentence manifestly excessive. Applicable principles [43] In order to succeed, the appellant must demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.3 [44] The relevant principles regarding appeals against sentence are those set out in House v The King.4 There are two categories of appeal grounds: those that allege a specific error by the first instance decision-maker and those that allege a miscarriage of the sentencing discretion resulting in a sentence that is manifestly excessive or inadequate. [45] In cases in which a specific error is established, “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.”5 [46] It is not necessary however to identify a particular error in the exercise of the discretion. “There may be cases where the sentence is so "unreasonable or plainly unjust" in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive.”6 [47] In cases of complaints of manifest excess, an appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences that could have been imposed upon the appellant for this offence.7 It is not a sufficient basis of intervention that the appellate court may have imposed a different sentence in the exercise of the sentencing discretion.8 [48] As the High Court said in Markarian v The Queen:9 “As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King [citation omitted] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually 3 Teelow v Commissioner of Police [2009] 2 Qd R 489 at [4] per Muir J (Fraser JA & Mullins J agreeing). 4 (1936) 55 CLR 499 at 504 – 505. 5 Kentwell v R (2014) 252 CLR 601 at [35]; see similarly Ratcliffe v Queensland Police Service [2019] QDC 144 at [15]. 6 R v Ikin [2007] QCA 224 at [5]. 7 Kentwell v R (2014) 252 CLR 601 at [35]. 8 R v Lawley [2007] QCA 243 at [18]. 9 (2005) 228 CLR 357; [2005] HCA 25 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ. -- 7 of 14 -- 8 described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".” Comparable cases [49] Under amendments to s 177 of the Domestic Violence and Family Protection Act 2012 (Qld) which came into effect on 30 May 2017, the penalty for breach of a domestic violence order is three years imprisonment or 120 penalty units for a first breach; and five years imprisonment or 240 penalty units where there has been a previous conviction for a breach within the past five years. These maximum penalties were an increase on the penalties that applied previously. It is recognised that when Parliament increases the maximum penalty for an offence this increase is indicative of the legislature’s intention that this type of offending be viewed more seriously and that accordingly, more severe penalties be imposed for it. [50] Statements of general principle from the Court of Appeal emphasise that in cases of domestic violence significant sentences of imprisonment involving actual custody are appropriate to deter not only individual offenders but the wider community. 10 General deterrence and denunciation are particularly significant considerations. [51] In the Magistrates Court, the police prosecutor relied upon LJS v Sweeney [2017] QDC 18, RJD v Queensland Police Service [2018] QDC 147, and DYN v Queensland Police Service [2020] QDC 47. [52] In LJS v Sweeney [2017] QDC 18 the appeal was allowed and the sentence reduced from three years imprisonment to two years imprisonment with a parole release date after eight months. The 38 year old appellant pleaded guilty to two offences of contravening a domestic violence order (aggravated offence), and six relatively minor summary charges of receiving tainted property, fraud, possessing dangerous drugs, and assaulting or obstructing police. The complainant was his ex-partner. There was a protection order issued against the appellant in her favour which prevented contact. The complainant was at home asleep. She awoke to find the appellant in the dwelling. She told him to “fuck off”. She saw her phone in his pocket. An argument ensued and he punched her, causing her to fall over and then left the dwelling with a mobile phone and $30 belonging to her. He was arrested on 23 June 2016 and declined an interview. On a later date, the appellant grabbed her by the arm and tried to walk her back into the house. She tried to pull away and he grabbed her by the back of the head, pushed her head into the fence, and kicked her in the back. She called the police and reported the matter. He made a number of calls and sent text messages to her. No serious injury was alleged. The appellant had 14 previous convictions for contravention of domestic violence orders over 10 years. He also had an extensive medical history including evidence of a number of psychiatric diagnoses, which had an impact on his offending, which were taken into account in mitigation. [53] In LJS, Smith DCJA noted that the penalty had increased from three years to five years imprisonment but there were no comparable sentencing decisions since the increase of the maximum. He said at [26]: “At first blush I would have considered a 3 year head sentence high, but within the sentencing range, but having considered the comparable decisions and noting the Crown’s concession, it 10 Eg. R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105 at [23]; R v Major Ex Parte A-G (Qld ) [2012] 1 Qd R 465 at [53]. -- 8 of 14 -- 9 would appear that a head sentence of 3 years imprisonment was excessive despite the applicant’s previous convictions. It seems to me that the parties’ concessions that 2 to 2 and a half year’s imprisonment is within the sentencing range in this matter, is accurate and as such I should exercise the sentencing discretion afresh.” Ultimately, the court considered that the appropriate penalty was one of two years imprisonment to serve eight months. [54] LJS was slightly older than the subject appellant, had a poor criminal history, and committed two contraventions rather than one. But unlike the appellant, LJS had evidence of a relevant psychiatric history in mitigation and did not offend on parole. LJS v Sweeney does not support the appellant’s submission that two years imprisonment in the appellant’s case was excessive. [55] In RJD v Queensland Police Service [2018] QDC 147, the 25 year old appellant pleaded guilty to three counts of contravening a domestic violence order (aggravated offence), committed while on parole and probation. During a struggle, the appellant pushed the aggrieved with sufficient force that she fell against and broke a window. She demanded he leave the house, which he did. He returned later that day and was verbally abusive. He threatened to kill her with a piece of glass from the window. He left again and returned later. Again, he was verbally abusive. Only one of the three contraventions involved actual physical violence. He had a 10 page criminal history for property and motor vehicle offences including breaches of court orders. It also included five previous contraventions of domestic violence orders and one common assault (domestic violence offence). For each of the last three contraventions, he was sentenced to 18 months imprisonment, to be served concurrently with each other but cumulatively on a 15 month sentence he was then serving. Morzone QC DCJ, applying LJS v Sweeney, dismissed the appeal against sentence. He found that a head sentence of between 18 months and two years imprisonment before amelioration for a cumulative sentence was appropriate. RJD was much younger than the appellant in the subject appeal and RJD’s history, although poor, was not as serious. [56] In DYN v Queensland Police Service [2020] QDC 47, the 39 year old appellant pleaded guilty to two contraventions of domestic violence order (aggravated offence) and was sentenced to 18 months and 12 months imprisonment to be served concurrently with each other, but cumulatively on an earlier term of 12 months imprisonment. On appeal his sentence was reduced to 15 months and 12 months imprisonment. The offending involved persistent telephone calls in breach of a no contact condition, verbal abuse, bashing on the complainant’s window at night, and making a threatening telephone call. There was no actual physical violence. He had a very poor criminal history with 23 previous convictions for contraventions of domestic violence orders and convictions for offences of violence. He offended within about two months of release on parole. Morzone QC DCJ found that the sentence should fall at the “high end of the range of 12 to 18 months imprisonment, but subject to some moderation having regard to the imposition of a cumulative sentence”. His Honour substituted sentences of 12 months and 15 months imprisonment, taking into account two months of undeclarable custody, with parole release at 40% calculated from the date the appellant was returned to custody. The offending in DYN was less serious than in the subject case. This case does not support the appellant’s submission that two years imprisonment in the appellant’s case was excessive. [57] On appeal, the appellant referred to OWL v Queensland Police Service [2021] QDC 5. In that case the 45 year old appellant pleaded guilty to one count of contravention of domestic violence order, aggravated offence, and was sentenced to 18 months imprisonment to be served -- 9 of 14 -- 10 cumulatively on an earlier term of 11 months imprisonment. On appeal, his sentence was reduced to 12 months imprisonment, to be served cumulatively. The appellant was on parole when he committed the offence. It involved him smashing the complainant’s car window, and later at a service station punching her several times to the head and torso before dragging her and pushing and pulling her from a car seat. That appellant had a poor criminal history including 13 previous convictions for contravening a domestic violence order. A parole eligibility date was set at the one third mark “to have regard to the possible delay the appellant may encounter in securing parole release”. Clarke DCJ said “a just sentence would result in an order of imprisonment for a period of two years, …However I am certainly satisfied the appellant has exposed himself to a sentence of up to two and a half years imprisonment.” He then referred to the possibility of imposing a two year sentence concurrently, but ultimately reduced the sentence by a significant degree because of totality and imposed it cumulatively. [58] In the subject case, no evidence about delays in considering parole applications was placed before the learned Magistrate or this Court, and the appellant did not rely upon that as a relevant factor in submissions on this appeal. Consideration [59] My review of the decisions referred to leads me to the conclusion that a sentence of two years imprisonment imposed cumulatively was not manifestly excessive. [60] The Court was required to have regard to s 9(2) of the Penalties and Sentences Act 1992 (Qld), including time spent in custody by the offender for the offence before being sentenced (s 9(2)(j)), sentences already imposed on the offender that have not been served (s 9(2)(l)), and the factors in s 9(3) because it was an offence involving violence or physical harm: s 9(2A). [61] The objective seriousness of the offence was aggravated by the following matters: 1. it was an offence of domestic violence committed by a persistent recidivist offender; 2. only two weeks after being released on parole; 3. for violent offending against the same complainant; 4. it involved actual physical violence; 5. it was followed by a threat involving a knife; 6. it occurred in the presence of a child; and 7. the complainant was sufficiently terrified to flee for her life, twice. [62] Balanced against those factors, the actual violence was not especially protracted, the assault involved a single punch, and the complainant did not suffer significant injuries. Nonetheless, protection of the community, and this complainant in particular, were particularly relevant factors on sentence. [63] It was a late plea of guilty, the matter having been set for trial. There was no change of facts. The plea was not an expression of genuine remorse or contrition. It did save the child witness and the complainant the trauma of giving evidence and being cross examined. In that way it had utilitarian value. -- 10 of 14 -- 11 [64] Other than the plea of guilty and the appellant’s disadvantaged upbringing, there was little else to mitigate the sentence. The appellant was a mature man who no longer had the benefit of youth. There was no information about his performance in custody on remand. There was nothing to suggest any steps taken towards rehabilitation, nor that he had developed insight or expressed remorse. There was no submission or evidence with respect to any physical or mental health condition, nor was there any submission from a Community Justice Group. [65] The learned Magistrate was confronted with a mature offender with a significant criminal history including violent offences, who squandered his parole by committing a further serious violent offence. Those circumstances, together with the matters above, afforded no basis to be lenient in the way contended by the appellant. [66] The offence before the Court was not an offence in Schedule 1, so the imposition of a cumulative sentence was not mandated by section 156A of the Penalties and Sentences Act 1992 (PSA). Given that the offending occurred whilst on parole for similar offending against the same complainant, and very shortly after being granted parole, a cumulative sentence could be ordered as a matter of principle. It was a proper exercise of the sentencing discretion to impose a cumulative sentence. No party contended otherwise. [67] In light of the fact that the offending occurred so soon after the appellant had been released on parole for offending involving the same woman, and in light of the need for specific deterrence given the appellant’s history for similar offending and breaching Court orders, I consider that a sentence of up to two years cumulative on the term of imprisonment the appellant was already serving was high but within range. [68] At the date of sentence, the appellant had spent 155 days in custody after his parole was suspended. Although strictly that time could have been declared as time served pursuant to s 159A PSA,11 it was the appellant’s reoffending while on parole that caused his return to custody so that he was serving out the term of the sentence previously imposed. In my view, it was a proper and unremarkable exercise of the discretion not to declare that time served on remand. [69] The effect of the sentence under appeal is that the appellant will be required to serve roughly four years and six months of continuous imprisonment (ignoring the 14 days he was released on parole) with a parole eligibility arising after he has served two years. That is slightly less than one half of the total period of imprisonment. [70] In considering totality, I have regard to the fact that the circumstances of the domestic violence offences for which the appellant was sentenced in March 2020 were sufficiently serious to warrant a head sentence of two years and six months imprisonment. [71] Section 160F of the PSA deals with the significance of an offender’s period of imprisonment. It relevantly provides: (2) When fixing a date under this division as the date an offender is to be released on parole or is to be eligible for release on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment. [72] The phrase “period of imprisonment” is defined in s 4 of the PSA to mean: 11see R v Whitely [2021] QSC 154; R v Stewart [2021] QSC 187. -- 11 of 14 -- 12 “[T]he unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether – (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment.” [73] The applicant’s “period of imprisonment” at the time he was sentenced consisted of the original two years and six months, and the cumulative sentence of two years imposed by the learned Magistrate. That is the period of imprisonment to which s 160F(2) refers when it provides that “the date fixed by the court must be a date relating to the offender’s period of imprisonment”. In this case, it was a total period of four years and six months. [74] The learned Magistrate’s power to fix the date upon which the applicant would be eligible for parole was conferred by s 160C of PSA in unqualified terms: “... the court may fix the date the offender is eligible for parole ...”. [75] Section 160F of the PSA does not require that the new parole eligibility date must be calculated as some proportion of the period of imprisonment.12 And it does not prescribe any sentencing methodology.13 [76] The words of the section merely require that the date “relate to” the total period. Hence s 160F(2) merely requires that when the sentencing judge fixes the parole eligibility date, the judge must do so having reference to the total period. It is sufficient if the sentencing judge fixes the date having reference to the total period, i.e. having that context in mind when doing so. That is what occurred in this case. [77] The setting of a non-parole period where cumulative sentences are imposed is not an arithmetical process permitting of some precise result. The totality principle does not require a sentencing judge to reduce the sentence by the precise amount of time already served.14 [78] There is nothing wrong in principle with a parole release or eligibility date being at or beyond the half-way mark of the overall period of imprisonment where considerations of breach of parole are involved, but the sentence imposed must always reflect the totality of the overall offending and be just in all the circumstances. [79] There are two aspects to the totality principle, or perhaps two ways of expressing the same aim: the first, the requirement that the resulting effective sentence is just and appropriate; and the second, the need to ensure that the effective sentence reached is not so “crushing” in its effect on the offender as to call for intervention.15 [80] The learned Magistrate set a parole eligibility date at 1 December 2021. That was after two years of that total period of imprisonment of four years and six months, which is slightly less than 50%. The full time expiry of the earlier sentence was 17 May 2022. With the two year 12 R v Bahcehan [2019] QCA 278 at [75] and [88]. 13 R v WBK (2020) 4 QR 110 at [5]. 14 R v Berns [2020] QCA 36. 15 Postiglione v The Queen (1997) 189 CLR 295, at 304 and 308; R v Baker [2011] QCA 104 at [39]-[40]. -- 12 of 14 -- 13 cumulative sentence, the full time expiry date is now 17 May 2024. Thus the parole eligibility date was set almost six months before the full time expiry date of the earlier sentence. If the appellant is successful in obtaining parole on or after his current parole eligibility date, he would not be required to serve any additional imprisonment for the subject offence unless he reoffends while on parole and is returned to custody. [81] Section 180 of the Corrective Service Act 2006 (Qld) enables the appellant to apply for parole within 180 days before his parole eligibility date. Thus setting the parole eligibility date at 1 December 2021 cannot be said to render the sentence manifestly excessive. Once this appeal is finalised, the appellant would be able to apply for parole. [82] In addition, serving only two years of a total period of four years and six months imprisonment before being eligible for parole for all of the offending committed in November 2019 as well as that in October 2020 cannot be said to be manifestly excessive. [83] In my opinion, the deferral of the parole eligibility date in this case to a point at slightly less than half of the overall period of imprisonment was appropriate to reflect the few matters in the appellant’s favour in the present matter. Conclusion [84] It is only when the court is convinced that the sentence is definitely outside the scope of appropriate sentencing discretion that it is ever justified in exercising the discretion to resentence on the basis that the sentence was manifestly excessive.16 [85] In R v Jackson [2011] QCA 103, Chesterman JA stated:17 “The cases do suggest that the applicant has been punished severely. That, however, does not dispose of the application. To succeed the applicant must demonstrate that the sentence imposed was beyond the permissible range, not that it was severe, or that a lesser punishment would have been appropriate, or even more appropriate than the one in fact imposed. There is no one “right” penalty in any case. There is always a range of permissible sentences. Different judges legitimately put weight on different circumstances and their opinions must be respected unless the sentence imposed is beyond the allowable range, or is otherwise affected by an error of fact or law.” [86] Another judge might have imposed a more lenient sentence with an earlier parole eligibility date. But I am not satisfied that the sentence is “unreasonable or plainly unjust” such as to justify the conclusion “that in some way there has been a failure properly to exercise the discretion”. I am not satisfied that the sentence was excessive. It follows that the appeal should be dismissed. Orders [87] The appellant did not make any submissions with respect to costs. [88] In the circumstances, I make the following orders: 1. Appeal dismissed. 16R v Sprott; Ex parte Attorney-General (Qld) [2019] 25 QLR at [14]. 17 R v Jackson [2011] QCA 103 at [25]. -- 13 of 14 -- 14 2. No order as to costs. -- 14 of 14 --