Commissioner of Police for the State of Queensland v Barton [2026] QDC 110

DISTRICT COURT OF QUEENSLAND CITATION: Commissioner of Police for the State of Queensland v Barton [2026] QDC 110 PARTIES: COMMISSIONER OF POLICE FOR THE STATE OF QUEENSALND (Appellant) V RILEY VINCENT BARTON (Respondent) FILE NO/S 48/2026 DIVISION: District Court of Queensland PROCEEDING: Appeal ORIGINATING COURT: Townsville Magistrates Court DEVIVERED ON: 14 August 2026 DELIVERED AT: Townsville HEARING DATE: 3 August 2026 JUDGE: Coker DCJ ORDERS: 1. Appeal is allowed. 2. The sentence of the 1 st of April 2026 is set aside. 3. In lieu thereof the respondent is resentenced as follows: (a) In respect of charge 1 to 8 months’ imprisonment to be served cumulative to the sentence imposed on the 23rd of November 2023 with a parole eligibility date as at the 14th of August 2026. (b) In respect of charge 2, convicted and not further punished. 4. Respondent is to surrender himself into custody within 7 days of this order. 5. No order as to costs. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY INADEQUATE – appeal pursuant to section 222 of the Justices Act 1886 (Qld) – where the appellant submitted that the sentence imposed by the learned Magistrate was manifestly inadequate – whether the exercise of sentencing discretion was -- 1 of 18 -- 2 miscarried – whether section 156A of the Penalties and Sentences Act 1992 (Qld) was engaged – whether it was open to the learned Magistrate to impose a suspended sentence in circumstances where the parties agreed the only appropriate sentence was a term of imprisonment served cumulatively. LEGISLATION: Corrective Services Act 2006 (Qld) Criminal Code Act 1899 (Qld) Justices Act 1886 (Qld) Penalties and Sentences Act 1992 (Qld) Transport Operations (Road Use Management) Act 1995 (Qld) CASES: Chakka v Queensland Police Service [2024] QCA 213 Hemmett v Commissioner of Police [2021] QDC 318 Heydt v Commissioner of Police [2017] QDC 104 House v The King [1936] 55 CLR 499 MacDonald v Queensland Police Service [2018] 2 Qd R 612 R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206 R v Brutton (2024) 18 Qd R 65 R v Neil [2001] QCA 41 R v Simpson [2001] QCA 109 R v Smith [2013] QCA 397 COUNSEL: M. O’Brien for the Appellant T. Schmitt for the Respondent SOLICITORS: Queensland Police Legal Services for the Appellant Navarro Lawyers for the Respondent [1] On the 30th of April 2026, the Commissioner of the Queensland Police Service, hereinafter referred to as the appellant, filed a notice of appeal pursuant to the provisions of section 222 of the Justices Act 1886 (Qld) (‘Justices Act’).1 The appeal related to the penalty imposed following a plea of guilty by Riley Vincent Barton. For convenience, I shall refer to him hereafter as the respondent. [2] The respondent, on the 1st of April 2026, entered a plea of guilty in relation to two offences. They were as follows: 1 Justices Act 1886 (Qld) s 222. -- 2 of 18 -- 3 (a) dangerous operation of a motor vehicle while adversely affected by an intoxicating substance, contrary to section 328A(1) and (2)(a) of the Criminal Code Act 1899 (Qld) (‘Criminal Code’)2, and (b) driving while a relevant drug was present in blood or saliva, while holding a P1 driver licence, contrary to section 79(2AA) and 86(2E) of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘Transport Operations Act’).3 [3] In respect of the more serious offence, the respondent was convicted and sentenced to 18 months’ imprisonment, wholly suspended for an operational period of two years. [4] The appeal filed on the part of the appellant was originally in these terms: (1) the sentence imposed was manifestly inadequate, (2) the exercise of the sentencing discretion miscarried in that: (a) the learned Magistrate erred in not declaring the sentence of imprisonment cumulative with another term of imprisonment the defendant was liable to serve in accordance with section 156A of the Penalties and Sentences Act 1992 (Qld) (‘Penalties and Sentences Act’) and, (b) in addition, or in the alternative, the learned Magistrate erred in wholly suspending the sentence of imprisonment in the circumstances it was required to be served cumulative with another term of imprisonment the defendant was liable to serve in accordance with section 156A of the Penalties and Sentences Act.4 [5] It should be noted that the appeal grounds were slightly amended by agreement between the appellant and the respondent. Ground 1 was no longer relied upon as a separate ground of appeal but rather in relation to the second ground, that it should include the following words: “And the sentence was inadequate”. This was to take into proper account the recent decision of Chakka v Queensland Police Service [2024] QCA 213.5 I shall come in due course to specific reference to that particular case. [6] Before doing so, however, it is appropriate that there should be some explanation of the background in relation to the appeal that is now brought. It should also be noted that to all intents and purposes, the first of the grounds of appeal relating to an error on the part of the learned Magistrate to not declare the sentence of imprisonment cumulative was remedied by way of the further consideration of the matter and the reopening of the sentence. [7] This occurred on the 11th of June 2026 where the verdict and judgment record exhibited to the affidavit of Zoe Ellen Navarro, solicitor for the respondent, and filed on the 15th of June 2026 recorded as follows: 2 Criminal Code Act 1899 (Qld) ss 328A(1), (2)(a). 3 Transport Operations (Road Use Management) Act 1995 (Qld) ss 79(2AA), 86(2E). 4 Penalties and Sentences Act 1992 (Qld) s 156A. 5 Chakka v Queensland Police Service [2024] QCA 213. -- 3 of 18 -- 4 “Reopening granted. Sentence amended by adding the term of imprisonment imposed on 1 April 2026 is to be served cumulative to the terms of imprisonment imposed in the District Court on the 23rd of November 2023”. [8] That amendment was of course required so as to comply with the terms of section 156A of the Penalties and Sentences Act.6 [9] As indicated, it is necessary to appreciate the facts relating to the sentence imposed in relation to this particular matter. Those facts were detailed in the schedule of facts which was tendered by the prosecution at sentence. The pertinent facts were read into the record by the prosecutor at the commencement of the sentence on the 1 st of April 2026 as follows: “MR BURKE: Thank you, your Honour. Just for the record, I’ll place some of the pertinent facts onto the record. So the offence occurs at the Bruce Highway, Bluewater, on the 21 st of February 2024. At approximately 3.15pm, the defendant, the driver of a utility vehicle, was conducting a burnout across the highway, where he crosses into the northern lane, where he nearly hits the guardrail on the side of the highway. He then sits on the side of the highway where the wheels were spinning, and he crosses over the painted island continuing to spin those wheels. He then crosses onto the wrong side of the highway where a semi-trailer is coming the other way. The semi-trailer sees him, breaks heavily in an effort to avoid collision with the defendant’s vehicle. He stays on the wrong side of the highway, continuing to conduct burnouts. He then conducts a 180-degree turn, a further burnout back onto the correct side of the Bruce Highway, crossing the painted island. This nearly causes the highway to come to a complete stop.” [10] In summary, it was detailed in the outline of submissions provided to the Court by the appellant as follows: “In summary, at approximately 3:15pm on 21 February 2024: a. the respondent was driving a utility at Bluewater on the Bruce Highway; b. was doing “burnouts” across the highway; c. after almost striking a guardrail, continued spinning the wheels, crossing to the wrong side of the road; d. an oncoming semi-trailer was then forced to break heavily to avoid a collision; e. the utility crossed a painted traffic island, and returned to the correct side of the road; f. sped off down the highway before turning into Forestry Road, Bluewater; g. was following another vehicle, an SUV, which was doing the 80km/hr speed limit; h. moved to the wrong side of the road, and accelerated so as to attempt to pass the SUV; i. the respondent lost control of the utility, causing it to hit the SUV. 6 Penalties and Sentences Act 1992 (Qld) s 156A. -- 4 of 18 -- 5 The area where the offence commenced with the ‘burnouts’ is speed limited to 80km per hour. Bluewater State School is nearby and at that time-of-day parents were doing school pick-ups of their children. The SUV contained the adult driver, Ms Dayle Foxlee, and six children aged between two years and 11 years of age. Four of the children belonged to Ms Foxlee while two were school friends. Ms Foxlee had just collected the children Bluewater State School. When the utility being driven by the respondent struck Ms Foxlee’s SUV, it caused the SUV to roll five times before coming to rest. Ms Foxlee and the children all suffered injuries to varying degrees. The respondent remained at the scene and made admissions to police that he was the driver of the utility and that he had been drinking and had consumed illicit drugs. His BAC was recorded as 0.135 and THC was identified from a drug.” [11] What is clear, of course, is that the offending is very serious. It becomes more significant, however, when as is recognised, the respondent was at the time of the offending, on parole. The parole offences were of a different nature, but were extremely serious. They included: (a) one count of grievous bodily harm (b) two counts of assault occasioning bodily harm while armed and in company, and (c) common assault. [12] The most serious of those offences was the count of grievous bodily harm, and on the 23 rd of November 2023, in relation to that count, the respondent was sentenced to a period of three years’ imprisonment. The sentences otherwise imposed were of 15 months’ imprisonment in relation to the two counts of assault occasioning bodily harm and two months’ imprisonment in relation to the common assault, all to be served concurrent with the head sentence. At the time that the sentences were imposed, 99 days of pre-sentence custody was declared as time already served, and a parole release date was fixed at the 15th of February 2024. [13] What is relevant there is that it should be noted that the offending now the subject of the appeal, occurred only some six days later on the 21st of February 2024. The full- time discharge date for the sentence imposed on the 23rd of November 2023 was the 15 th of August 2026. And as such, the respondent was subject to parole as at the time of the offending. [14] As will become apparent during these reasons, the existence of parole, though not suspended or cancelled by Corrective Services such that the respondent has remained within the community is a significant factor when consideration is given to the penalty actually imposed. Nature of the Appeal [15] Section 222 of the Justices Act provides for a complainant who is aggrieved by an order made by a justice in a summary way on a complaint for an offence to appeal the -- 5 of 18 -- 6 order to a judge of the District Court, a complainant may appeal against the sentence imposed.7 [16] It is important to note that an appeal pursuant to the provisions of section 222 proceeds by way of rehearing.8 In MacDonald v Queensland Police Service [2018] 2 Qd R 612, Justice Bowskill as her Honour then was, noted at paragraph 47: “The District Court is required to conduct a real review of the trial and the Magistrate’s reasons and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error”. 9 [17] An appeal against the exercise of a sentencing discretion invokes the principles well recognised in House v The King [1936] 55 CLR 49910, where the court there noted that section 22211 permits appellate intervention only where an error in the exercise of the sentencing discretion is established and that error has resulted in a sentence which is excessive or inadequate. [18] In more recent times, in the case previously mentioned, Chakka v Queensland Police Service,12 the Court of Appeal reviewed the construction to be given to section 222(2)(c) of the Justices Act, which provides the right of appeal against sentence where the defendant has pleaded guilty.13 And there, Brown J stated the following: “[87] In my view, the correct construction of s 222(2)(c) ... permits appellate intervention where an error in the exercise of the discretion of the kind recognised by the House v The King is established, and the error has resulted in a sentence which is excessive. Similarly, if a sentence is said to be inadequate, it must be established that the error has resulted in a sentence being inadequate. [88] The above construction ... requires an appellant to demonstrate not only that the sentencing discretion has miscarried due to an error but also that the resulting sentence is excessive or inadequate... [89] Such a construction does not require the appellate judge to undergo an artificial exercise of determining the degree to which the sentence could be said to be excessive, but rather for the judge to be satisfied absent the error, the appellant judge would in all the circumstances have sentenced the defendant to a lesser sentence. Once the appellate judge is satisfied that without the error identified a lesser sentence should have been imposed in all of the circumstances that were before the lower court, the sentence should be set aside and the sentencing discretion re-exercised. That would similarly apply where the sentence is said to be inadequate. 7 Justices Act 1886 (Qld) s 222. 8 Ibid. 9 MacDonald v Queensland Police Service [2018] 2 Qd R 612 [47]. 10 House v The King [1936] 55 CLR 499. 11 Justices Act 1886 (Qld) s 222(2)(c). 12 Chakka v Queensland Police Service [2024] QCA 213. 13 Justices Act 1886 (Qld) s 222. -- 6 of 18 -- 7 [90] Obviously, if the ground of error raised is that a sentence is ‘manifestly excessive’ or ‘manifestly inadequate’, that two stage process will not be required given the nature of the error raised...”14 [19] As such, it is clear that there is now very clearly a two-stage process required to be followed on relation to appeals. Not only should the appellant be able to demonstrate that the sentencing discretion has miscarried due to error, but as is the case here, that as a result of that, the resulting sentence is inadequate. [20] A consideration, therefore, obviously needs to be given, particularly in circumstances where there must be a real review of the sentence to consider the submissions that were made both on behalf of the appellant and the respondent, as well as a consideration of the decision of the learned Magistrate. [21] Helpfully, in the outline provided by the appellant, the submissions of both prosecution and defence have been addressed and reduced to a summary of the relevant submissions. That outline and assessment has not been challenged by the respondent, and I accept that the outline details the relevant submissions as follows. [22] On the part of the prosecution, the following relevant submissions: “a. the relevant offence was committed while the respondent was on parole; b. the relevant offence was a schedule 1 offence so there is a cumulative aspect to the sentence; c. the offence was objectively serious with aggravating circumstances, noting that injuries were suffered to those in the SUV; d. there was a need for general deterrence; e. that as the sentence would be cumulative, the principles involving totality and the need to avoid any crushing effect were relevant to the sentence impose; f. it was not conceded that there were issues of delay which were not caused by the respondent; g. there were issues of ‘contingent liability’ in respect of the earlier sentence if the respondent was sentenced to imprisonment and thus his parole is cancelled; and h. without those issues which were adverse to the respondent, a sentence in the range of 18-24 months imprisonment would be within range.” [23] Following that, on behalf of the respondent defendant, the following relevant submissions were made: “a. there had been delay by the arresting officer charging the defendant with the relevant offence; b. once the relevant offence/charge was before the court on 11 July 2025, it was listed for sentence at the earliest available time. However, further delays due to the prosecution ensured; c. the continued delays in having the charges finalised caused the respondent ‘anxiety’ and ‘uncertainty’; 14 Chakka v Queensland Police Service [2024] QCA 213 [87]-[90]. -- 7 of 18 -- 8 d. the delays and the resulting anxiety were factors in mitigation; e. that there were issues of ‘contingent liability’ in respect of the earlier sentence if the respondent was sentenced to imprisonment; and f. effectively, this could have been avoided by wholly suspending any sentence of imprisonment.” [24] In addition to those matters that are detailed in the submissions made by the legal representatives for the respondent, it was also noted, that the following matters were of significance in relation to consideration of penalty. They included: (a) that the respondent accepted full responsibility, (b) that he had demonstrated genuine remorse in case conferencing and through his early indication to plead guilty (c) he was a youthful offender, (d) he had promising prospects of rehabilitation and (e) that a sentence which would allow him to remain in the community was preferable. [25] It was acknowledged by the legal representatives for the respondent, however, that in light of the nature of the offending and notwithstanding the various submissions, the “only appropriate sentence is a term of imprisonment” and that it would need to be served cumulatively upon the sentence imposed on the 23 rd of November, 2023. Both the prosecution and the defence therefore were agreed that the offending was of such a character that the only proper sentence was one of imprisonment. [26] The Crown submitted, at first instance, that the appropriate penalty, were it not to have been the case that consideration has to be given to totality and other contingencies was a sentence in the range of 18 months to 2 years. However, the prosecution acknowledged that certain factors would mitigate the penalty to be imposed. The following is said: “Those factors which I outlined, including the delay, including the contingent liability issue to which there is some unknown quantity in relation to what the parole board will do with that contingent liability. And thirdly, the cumulative aspect in relation to the sentence having to be served cumulatively with the sentence he’s currently serving for grievous bodily harm.” [27] As a result, noting the concessions that appropriately should be taken into account, the prosecution submitted that the range to be served by way of imprisonment was 12 to 18 months to be served cumulatively on top of the sentence which had already been imposed in November of 2023. The prosecutor went on specifically to note that: “...taking into account the time that would be taken in relation to parole – and he must receive, if your Honour does sentence him to an actual period of imprisonment, a parole eligibility.” The prosecutor then acknowledged that it would be in order to set parole eligibility as at the date of sentence. [28] As noted, the defence also indicated that an actual period of imprisonment was the appropriate penalty, but that taking into account other factors of mitigation that were detailed, a head sentence of a period of 12 months should be imposed in relation to -- 8 of 18 -- 9 the dangerous operation offence, but that it should be wholly suspended for an operational period of 18 months to 2 years. [29] The learned Magistrate clearly was mindful of those particular, matters, noting as her Honour did in the decision that there were a number of factors to be taken into account. In particular, the learned Magistrate acknowledged that the offending was: “...a very serious example of this offending because it occurred on a very busy highway, the Bruce Highway at Bluewater. The speed limit in the area was 80 kilometres per hour, but it was around 3 o’clock in the afternoon and members of the public were in the area doing the school run because the Bluewater School, a state school, is off Bluewater Drive”. [30] The Magistrate also acknowledged the significance of the fact that the respondent was at the time of the offending, on parole, though her Honour noted the parole had not been suspended and that, therefore the respondent had remained within the community and had thereafter been compliant with the terms of parole. In her decision after detailing particulars of the offending, the Magistrate noted at some length, particulars of the respondent’s personal history, including addressing matters relating to the submissions in writing that had been provided and additional material filed in support, including a letter from the respondent’s doctor. [31] The learned Magistrate noted that the doctor had indicated that there was a diagnosis of stress, anxiety, and depression and that the respondent was being treated for those conditions as well as acknowledging as a result of submissions made, that there were some issues with alcohol consumption but that that had been significantly reduced since the last offending. Cannabis use was also recognised as a factor to be taken into consideration, and that is relevant, of course, here when it is noted that the respondent was charged with an offence relating to driving whilst a relevant drug was present in his blood or saliva. [32] The learned Magistrate made particular reference to the early plea of guilty and the cooperation provided to police at the time of offending. Her Honour also made reference to having taken into account, references that had been tendered from employers that had employed the respondent in the past and noted that they speak highly of the respondent in respect of his work ethic and work history. [33] The Magistrate also acknowledged that the references spoke of other positives in relation to the respondent and concluded her assessment of those issues as follows: “So you do obviously do – are a young man that does have some very positive attributes, and those are – matters are relevant in assessing your prospects at rehabilitation because that is going to be a consideration in sentencing you today.” [34] Her Honour then went on to discuss the difficult balance needed to be met in relation to very serious offending bringing the respondent before the court, but then taking into account issues such as delay, the plea of guilty, and the other positives in mitigation. Importantly, and of course it is also relevant, is a reference made by the learned Magistrate to recognition to be given to the harm done to the victims of the offence. In this instance, those who were injured as a result of the collision between the respondent’s vehicle and the vehicle driven by the other driver. -- 9 of 18 -- 10 [35] Her Honour noted the importance of personal and general deterrence and the need to consider the contingent liability that arose as a result of the offending whilst on parole. In that regard, Magistrate Warrington made the following comments: “Now, you heard the prosecutor and your lawyer talk about the condingent- contingent liability and your lawyer no doubt explained that to you, but basically what that means is if you are sentenced to a term of imprisonment and you are required to serve that term of imprisonment in a correctional centre, then your parole order gets cancelled, and it goes back to the date of the offence. So you’ve spent extensive period of time compliant on parole that – and although there are provisions in relation to what the parole board can do, it doesn’t mean you have to go and re-serve that full term, but it does mean that you would be going back into custody today. And I’ve got to decide whether that would be just in all of the circumstances and whether that would achieve the purposes of rehabilitation. But most importantly, deterrence, personal deterrence, of course, protection of the community once you’re taken out of the community, but it still ash to be just, and any penalty has to reflect the overall gravity of the offending. And when I consider that it is – the type of offence where normally, yes, you would have to serve a term of imprisonment, but I’ve weighted up that you are still a youthful man, you do have prospects at rehabilitation, it is your first time before the fen- court for a dangerous operation of a motor vehicle, you have been without your licence for thirteen and a-half months, you’ve continued to work, you haven’t reoffended, you’ve complied with your parole order, that if I was to make you go into prison today, the prospects at rehabut – rehabilitation become less and less, because you have demonstrated now for this period of over thirteen months that you can stay out of trouble and you’re – you obviously have some people here in support of you today, so you do have the benefit of support in the community, which also increases the opportunity at rehabilitation, and, of course, when you’re working and you’re going well in your employment.” [36] Her Honour noted that the respondent had already been convicted at the commencement of the sentence when the plea was entered, and went on to impose what she said she considered the most appropriate and just sentence in the circumstances. She acknowledged that that was a term of imprisonment, but that in the circumstances, it should be imprisonment for a period of 18 months, wholly suspended for a period of two years. In respect of the other offence, driving whilst a relevant drug was present, she recorded a conviction but did not further punish. [37] There is little criticism with respect that can be made of the detailed assessment entered into by the Magistrate in relation to the various matters required to be considered. In regard to a penalty to be imposed, however, whilst her Honour was made clearly aware of obligation of the need to consider the provisions of section 156A of the Penalties and Sentences Act, her Honour did not, at least initially, take into account the obligations that arise with regard to a cumulative order being made.15 That was, as I have noted, been rectified by the reopening of the sentence on the 11th 15 Penalties and Sentences Act 1992 (Qld) s 156A. -- 10 of 18 -- 11 of June 2026 and the indication that the penalty was to be served cumulative to the terms of imprisonment imposed by the District Court on the 23rd of November 2023. [38] In this instance, it is clearly acknowledged that offending pursuant to the provisions of section 328A, dangerous operation of a motor vehicle, is a Schedule 1 offence. 16 Therefore, in the circumstances of such offending, and whilst the offending occurred whilst he was on parole, that the sentence must be served cumulatively with the other term of imprisonment. [39] The question, therefore, to be considered in respect of this matter is whether imposing a suspended sentence to be served cumulative with the sentence imposed in November of 2023 gives rise to an error on the part of the learned Magistrate. There is only limited authority to assist in relation to such a consideration. In particular, I note, however, that I was referred to the decision of Devereaux SC DCJ, as his Honour then was, in Hemmett v Commissioner of Police [2021] QDC 31817, where consideration was specifically given to the meaning of the words “any other term of imprisonment” as referred to in section 156A(2) of the Penalties and Sentences Act.18 In that regard, his Honour said the following when considering section 156A(2) and the provisions of the Corrective Services Act19: “These provisions suggest a person is liable to punishment upon commission of an offence. More particularly, a person is liable to serve a term of imprisonment upon being convicted and sentenced to a term of imprisonment. Liability to serve the term continues until it is served. A person is taken to be serving a sentence while on parole”.20 [40] His Honour, however, did give specific to a consideration of whether a court could declare a sentence cumulative as required pursuant to the provisions of section 156A of the Penalties and Sentences Act and still suspend it pursuant to the provisions of section 144 of the Penalties and Sentences Act.21 His Honour said at paragraph 19: “A court cannot, in my opinion, suspend a future sentence. Section 156A provides that in certain circumstances a sentence must be ordered to be served cumulative with any other term of imprisonment the offender is liable to serve. A cumulative order means the imprisonment is directed to start from the end of a period of imprisonment the offender is serving or has been sentenced to serve”.22 [41] As such, when considering the provisions of section 144 of the Penalties and Sentences Act, and in particular the power pursuant to section 144(6) to fix an operational period, his Honour suggested that it would be incongruous for the operational period to run before the sentence has begun.23 His Honour noted that section 144(6)(a) of the Penalties and Sentences Act is in the following terms: “(6) The operational period starts on the day the order is made and must be 16 Criminal Code Act 1899 (Qld) ss 328A(1) and (2)(a). 17 Hemmett v Commissioner of Police [2021] QDC 318. 18 Penalties and Sentences Act 1992 (Qld) s 156A(2). 19 Corrective Services Act 2006 (Qld). 20 Hemmett v Commissioner of Police [2021] QDC 318. 21 Penalties and Sentences Act 1992 (Qld) ss 144, 156A. 22 Hemmett v Commissioner of Police [2021] QDC 318 [19]. 23 Penalties and Sentences Act 1992 (Qld) s 144(6). -- 11 of 18 -- 12 (a) not less than the term of imprisonment imposed and; (b) not more than five years.”24 [42] His Honour said in that regard: “It would be inconsistent with the scheme of the act to purport to delay the start of a suspended sentence because the operational period commences on the day the order is made. The liability to serve the sentence is immediate and continues through the operational period, although contingent on an order being made under Section 147 of the Penalties and Sentences Act upon breach”.25 [43] As such, the appellant here submits that at the time that the offence was committed, the respondent was on parole and, therefore, pursuant to the provisions of section 156A of the Penalties and Sentences Act, that the respondent remained liable to serve the remainder of the sentence for which he was on parole.26 Further, as the offence of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance, contrary to section 328A(1) and (2)(a) of the Criminal Code, is a Schedule 1 offence, the sentence had to be cumulative.27 [44] The real issue then, in relation to this matter relates to the imposition of a wholly suspended sentence to be served cumulative upon the sentence for which a person was on parole. Section 144 of the Penalties and Sentences Act clearly provides the power to the court to suspend a period of imprisonment.28 [45] But at paragraph 21 of the decision his Honour said: “Because subsection (3) provides that a court may suspend part of a term, it follows that the suspension may take effect immediately or at a date after the sentence order was made. In either case, the operational period commences on the day the order is made. It is incongruous that an operational period could run before a sentence has commenced”.29 [46] His Honour specifically raised that issue with counsel in Hemmett30 and noted that he had given counsel the opportunity to provide submissions in respect of the question of whether it was open for a court to impose a sentence, ordered to be served cumulative to another term of imprisonment and then suspended. His Honour noted there that both parties submitted that that was not a consideration open to them, and indicated that, in his view, that was correct and that such an opportunity was not open pursuant to the provisions of section 156A and section 144 of the Penalties and Sentences Act.31 [47] The appellant here submits to the same effect, that where a sentence is mandatorily required to be served cumulative to the sentence upon which the respondent in this instance was on parole, it was not lawfully open to the magistrate to sentence the 24 Penalties and Sentences Act 1992 (Qld) s 144(6). 25 Hemmett v Commissioner of Police [2021] QDC 318. 26 Penalties and Sentences Act 1992 (Qld) s 156A. 27 Criminal Code Act 1899 (Qld) ss 328A(1)-(2)(a). 28 Penalties and Sentences Act 1992 (Qld) s 144. 29 Hemmett v Commissioner of Police [2021] QDC 318 [21]. 30 Ibid. 31 Penalties and Sentences Act 1992 (Qld) ss 144, 156A. -- 12 of 18 -- 13 respondent to a suspended period of imprisonment and that therefore there was an error that arose in the sentencing process. [48] The respondent, however, argues that whilst the preconditions as detailed in section 156A of the Penalties and Sentences Act are satisfied, namely, that a schedule 1 offence has been committed and that it was committed whilst the respondent was on parole, that does not wholly address the issues that arise in relation to this matter.32 The respondent argues that a wholly suspended sentence to be served cumulative upon a previous sentence is still valid. [49] In that regard, the argument relates to the provisions of section 144 through 145 of the Penalties and Sentences Act.33 The respondent argues that section 145 is important in that it specifically provides, as follows “An offender for whom an order under section 144 is made has to serve the suspended imprisonment only if the offender is ordered to do so under section 147”.34 [50] As such, the respondent argues, with respect, that the considerations detailed by Devereaux SC DCJ in Hemmett35 do not give rise to an incongruity because a wholly suspended sentence does not create an immediate present obligation on the offender to serve that term of imprisonment, but rather that it is a liability that is contingent and arises only if and when a court exercises the powers in section 147 to order the offender to serve it.36 [51] As such, the respondent argues that whilst Deveraux SC DCJ identified an incongruity, his Honour did not fully consider the true nature of section 145 of the Penalties and Sentences Act37 and as such, an incongruity does not arise. The respondent argues that the incongruity identified in the Hemmett38 case rested upon a proposition that the operational period would run against a sentence that had not yet commenced. However, the respondent says that this: “conflates two distinct concepts: the obligation imposed by the operational period and the obligation to serve the term of imprisonment”. [52] The respondent argues that the operational period is not a period of sentence served, it is a period of conditional liberty during which the offender must not commit another offence punishable by imprisonment. As such, the respondent argues that the obligation to refrain from offending begins immediately on the day the order is made and can operate concurrently with any existing obligations, including existing parole conditions that might apply as to the earlier sentence imposed. The respondent says that there is nothing incongruous about this because the operational period governs the offender’s conduct whilst the term of imprisonment governs what may be served if that conduct is breached. The respondent says that these are two distinct and different considerations. [53] In particular, the respondent argues that the distinction is confirmed and clarified by section 145, noting that the offender has to serve the suspended imprisonment only if 32 Penalties and Sentences Act 1992 (Qld) s 156A. 33 Ibid ss 144-145. 34 Ibid s 145. 35 Hemmett v Commissioner of Police [2021] QDC 318. 36 Penalties and Sentences Act 1992 (Qld) s 147. 37 Ibid s 145. 38 Hemmett v Commissioner of Police [2021] QDC 318. -- 13 of 18 -- 14 the offender is ordered to do so under section 147.39 As such, the respondent argues that until section 147 is invoked, the suspended term is not being served and will not be served and, therefore, creates no obligation as to service.40 [54] Succinctly, the respondent therefore says that even though there is a prescription pursuant to the provisions of section 156A that the term of imprisonment is cumulative, meaning it is directed to commence after the expiry of the term the offender is liable to serve under the prior sentence, it sits dormant and causes no incongruity. 41 It is a prescription about the order of service if service of the term of imprisonment is ever required, but says nothing, it is argued, about when the operational period runs. [55] In that respect, the respondent argues that the mandatory nature of a cumulative order made under section 156A(2) says nothing about whether or not the sentence to be served cumulatively may be suspended. 42 The respondent notes, particularly, that the Penalties and Sentences Act contains no provision expressly prohibiting the combination of a cumulative order and a suspended order.43 [56] As such, the question to be asked, it is argued, is whether the two are structurally incompatible, and the respondent says that as a result of the analysis previously referred to, they are structurally compatible. [57] It should be noted, however, in that regard, that section 4 of the Penalties and Sentences Act specifically defines a term of imprisonment as including: “(a) the imprisonment an offender is serving or is liable to serve”.44 As such it is contended for the appellant that the argument that a suspended sentence sits dormant and causes no incongruity is contrary to the definition of a term of imprisonment which draws no distinction between the imprisonment being served or liable to be served. [58] I shall return to that particular aspect of the appeal shortly, but should first specifically address a further argument in support of the respondent’s contention that there is no incongruity. There, specific reference is made to the provisions of section 209 of the Corrective Services Act 2006 (Qld) (‘Corrective Services Act’), which it is said lends support to the construction proposed by the respondent.45 Section 209 provides that where a prisoner is sentenced to another period of imprisonment for an offence committed during the period of a parole order, the parole order is taken to have been automatically cancelled on the date on which the offence occurred.46 [59] However, section 209(3)(b)(ii) specifically notes that subsection (1) relating to the cancellation of the parole does not apply if the period of imprisonment mentioned in the subsection is: “(ii) wholly suspended under the Penalties and Sentences Act 1992 part”.47 39 Penalties and Sentences Act 1992 (Qld) ss 145, 147. 40 Ibid s 147. 41 Ibid s 156A. 42 Ibid. 43 Ibid. 44 Ibid s 4. 45 Corrective Services Act 2006 (Qld) s 209. 46 Ibid. 47 Ibid s 209(3)(b)(ii). -- 14 of 18 -- 15 [60] The respondent argues that this is not an inadvertent gap, but that the legislature has deliberately provided that a court may impose a wholly suspended term of imprisonment for an offence committed on parole without that sentence triggering the automatic cancellation of the parole order. The respondent says that there is no distinction to be drawn between schedule 1 offences or other offences that might lead to a suspended sentence being imposed and that as such, it should be read widely to include all such offences. [61] As such, the respondent argues that section 156A of the Penalties and Sentences Act contemplates identical circumstances to those considered in section 209 of the Corrective Services Act and should be viewed as “powerful statutory confirmation that the legislature contemplated and endorsed the course the magistrate took”.48 [62] The argument is one that gives rise to a need for contemplation as to the differing positions arising in relation to a consideration of the obligations pursuant to section 156A of the Penalties and Sentences Act and section 209 of the Corrective Services Act.49 A distinction, however, needs to be recognised in relation to the sentencing process. In that regard, the Penalties and Sentences Act provides comprehensive guidance as to the course that a court should follow in relation to offending such as this, whilst section 209 of the Corrective Services Act is, as was submitted by the appellant, in many respects administrative in its application, in that it speaks of the course to be followed, if a prisoner is sentenced to another period of imprisonment for an offence committed in Queensland. 50 [63] It does not draw distinctions between schedule 1 offences or offences of another character, but does note the distinct difference in the application of an automatic cancellation of parole, except where it specifically does not apply. [64] Section 156A of the Penalties and Sentences Act51, however, is far more direct in its wording and, of course, it is mandatory. It requires the sentence to be served cumulatively with any other term of imprisonment that the prisoner is liable to serve. As such, the presumption is that time would commence to run and any further time ordered in relation to the more recent offending would be required to be served cumulatively and to follow on from the original sentence. Decision [65] It is, in my view, entirely correct, therefore, to accept that the operational period in relation to a sentence must relate directly to the sentence. And as Devereaux SC DCJ noted: “It would be incongruous that an operational period could run before a sentence has commenced”.52 [66] As such, I am satisfied that the imposition of a suspended sentence to run cumulative upon a sentence already required to be served is not open in the circumstances and as such, the learned magistrate erred in imposing a wholly suspended sentence to be 48 Penalties and Sentences Act 1992 (Qld) s 156A; Corrective Services Act 2006 (Qld) s 209. 49 Ibid. 50 Ibid. 51 Penalties and Sentences Act 1992 (Qld) s 156A. 52 Hemmett v Commissioner of Police [2021] QDC 318. -- 15 of 18 -- 16 served cumulatively upon a previous sentence. As such, the appeal must be allowed and it be accepted that the exercise of discretion has been compromised. [67] What then arises in that regard is a consideration of the course that should properly be followed in relation to a sentence to be imposed. I note that the respondent in the outline provided indicated that if the court found that the Magistrate had erred in imposing a wholly suspended term of imprisonment, then: “the respondent accepts that the sentence was inadequate and the court must intervene to resentence him”. [68] Thereafter, both the appellant and the respondent address issues in relation to the re- exercise of the sentencing discretion pursuant to the provisions of section 225 of the Justices Act.53 I am satisfied that that is the appropriate course to follow in relation to this particular matter. [69] In that regard, as was emphasised in the submissions that were made, there needs to be very real consideration of the issue of contingent liability, and as was specifically referred to by the magistrate, issues in relation to delay, mitigating circumstances, and the like. It is necessary in light of the finding that the appeal should be upheld, for me to consider those matters here. [70] The question of a contingent liability is relevant and important. To assist in that regard, the appellant has provided details of sections 210 and 211 of the Corrective Services Act, noting specifically that section 210 provides in subsection (3) as follows: “(3) When arrested, the prisoner must be taken to a prison to serve the unexpired portion of the prisoner’s period of imprisonment”.54 [71] At section 211, the Act notes at subsection (2), the following: “the time for which the prisoner was released on parole before one of the following events happens counts as time served under the prisoner’s period of imprisonment”.55 [72] It was acknowledged at the original hearing that the time which remained to be served was a little in excess of 13 months, and that, therefore, any cumulative sentence needed to be ameliorated to take that particular, factor into consideration. In R v Brutton (2024) 18 Qd R 65, Bowskill CJ noted as follows: “A case where a defendant reoffends whilst on parole and remains in the community for some time after that before returning to custody, they do remain liable to serve the time (that they were in the community after reoffending).”56 [73] This is reflective of the clear indication in section 211(2)(c) that the time served under the parole order up to the commission of the relevant offence is taken to be time served under the period of imprisonment, but the balance of that period is not.57 The balance of the period is the “unexpired portion” which must be served if the prisoner is 53 Justices Act 1886 (Qld) s 225. 54 Corrective Services Act 2006 (Qld) s 210, 211. 55 Ibid. 56 R v Brutton (2024) 18 Qd R 65. 57 Corrective Services Act 2006 (Qld) s 211(2)(c). -- 16 of 18 -- 17 arrested. That contention was specifically elaborated upon in R v Smith [2013] QCA 397.58 [74] As such, and it was submitted to the learned Magistrate, the contingent liability remaining as a result of the sentence imposed on the 23rd of November 2023 was 13 months and 11 days, and that that period will remain as liable for the respondent to serve. This then gives rise to considerations of totality and the need to avoid the crushing burden of a combined sentence. It is not necessary here to elaborate upon the totality principle other than to note, as was the case in the R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206, that: “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 the total period is attributable”.59 [75] As such, there is a balance in assessing an appropriate sentence when applying the totality principle, so as to impose a sentence which is not an affront to the community. Given the seriousness of the offending, and this was recognised by the learned Magistrate, where there was real injury and risk to members of the community, but at the same time, to not impose a sentence that would be crushing in its totality. [76] In that regard, the question then to be asked is whether the imposition of an 18-month sentence imposed by the magistrate whilst appropriate in the circumstances that she considered, would be appropriate given the respondent’s contingent liability. In that respect, I was referred by the Crown to a considerable number of cases relating to the dangerous operation of motor vehicles and the penalties that might appropriately be imposed. [77] I note for the record that they included Heydt v Commissioner of Police, a decision of Lynch QC DCJ, where his Honour specifically noted the significance and importance of taking into account the risk to other road users which results from intentionally dangerous or reckless course of driving, and the fact then that the culpability of the offender is higher and higher penalties should be imposed.60 That was clearly the case here. [78] The cases thereafter referred to by the Crown included R v Neil [2001] QCA 41 and R v Simpson [2001] QCA 109, and the penalties that were imposed in that regard.61 The respondent acknowledged the appropriateness of a sentence in the 18 months to 2 year range as reflecting the decisions that were referred to, but that because of totality there needs to be a further amelioration. The Crown submits that a period of 12 months’ imprisonment would be appropriate. [79] That, however, needs to be taken into account upon the contingent 13 months and 11 days that remains upon the earlier sentence. As such, it would mean if 12 months were imposed, that the sentence remaining to be served would be a little more than two years. The respondent, rather, argues that this does not sufficiently recognise the totality of the sentence in circumstances where there has been the significant delay between the offending, the charging, and when the respondent was actually sentenced, 58 R v Smith [2013] QCA 397. 59 R v Beattie; Ex parte Attorney-General (Qld) [2014] QCA 206. 60 Heydt v Commissioner of Police [2017] QDC 104. 61 R v Neil [2001] QCA 41; R v Simpson [2001] QCA 109. -- 17 of 18 -- 18 and that the delay has been further exacerbated by the appeal. There are also those considerations with regard to rehabilitation and the like. And it is, as I have already indicated, a delicate balance to be looked at. Orders for resentencing [80] Ultimately, having found that the appeal should be allowed and that resentencing by me would be appropriate, I intend to order that the respondent be resentenced to 8 months’ imprisonment to be served cumulative to the sentence imposed on the 23 rd of November 2023. In light of time served and those other mitigating factors to which I have made reference previously, I intend to order parole eligibility be ordered as at the 14th of August 2026. [81] As the respondent is at liberty at the moment, I will further order that he is to surrender himself into custody within 7 days of this order. And finally, that in accordance with the provisions of the Justices Act section 232(4)(a), there would be no order as to costs.62 62 Justices Act 1886 (Qld) s 232(4)(a). -- 18 of 18 --