Queensland Police Service v Cullen
[2025] QDC 160
•7 November 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Queensland Police Service v Cullen [2025] QDC 160
PARTIES:
QUEENSLAND POLICE SERVICE
(Appellant)
v
GLENN ANTHONY CULLEN
(Respondent)
FILE NO: Appeal No 26 of 2025
Magistrates Court No 8932 of 2024
DIVISION:
Appellate
PROCEEDING:
Appeal pursuant to section 222 Justices Act 1886 (Qld.)
ORIGINATING COURT:
Magistrates Court at Townsville
DELIVERED ON:
7 November 2025
DELIVERED AT:
Townsville
HEARING DATE:
10 June 2025
JUDGE:
Kahler DCJ
ORDERS:
1. Leave is granted to amend the first ground of appeal.
2. Appeal allowed.
3. Except for the period of disqualification imposed on the respondent from holding or obtaining a Queensland driver licence, the sentencing orders imposed by the Magistrates Court at Townsville on 20 January 2025 are set aside
4. The following sentencing orders are imposed:
(a) For the offence of driving of motor vehicle without a driver licence disqualified by court order, 6 months’ imprisonment;
(b) The 9-month suspended term of imprisonment imposed by the Magistrates Court at Townsville on 4 September 2023 be fully invoked;
(c) Each of the terms of imprisonment are ordered to be served concurrently with one another;
(d) A parole release date in respect to the periods of imprisonment imposed to be fixed as at the date of these orders with the respondent required to report to the probation and parole office at Townsville and obtain a copy of the order by no later than 5:00pm on the next business day following the date of these orders; and,
(e) Convictions recorded.
CATCHWORDS:
CRIMINAL LAW – APPEAL – MAGISTRATES - APPEAL AGAINST SENTENCE - appeal pursuant to section 222 Justices Act 1886 (Qld.) - where the respondent pleaded guilty to driving of a motor vehicle without a driver licence – where the respondent had previously been disqualified from driving by court order – where the respondent had a significant traffic record spanning over a period of 13 years comprising repeat offending – where the respondent at first instance was fined with conviction recorded, disqualified from driving for a period of two years, and the operational period of the suspended sentence previously imposed was extended by six months – where the appellant appeals on the ground the sentence being manifestly inadequate.
LEGISLATION:
Justices Act 1886 (Qld.) s 222, 223, 224
Transport Operations (Road Use Management) Act 1995 (Qld.) s 78Penalties and sentences Act 1992 (Qld.) s147
CASES:
White v Commissioner of Police [2014] QCA 12
Commissioner of Police v Toby [2025] QDC 22
Fox v Percy (2003) 214 CLR 118
Warren v Coombes (1979) 142 CLR 531
Dwyer v Calco Timbers (2008) 234 CLR 124
Forest v Commissioner of Police [2017] QCA 132
McDonald v Queensland Police Service [2017] QCA 255
R v Morse (1979) 23 SASR 98
R v Lomass (1981) 5 A Crim R 230
R v McIntosh [1923] St R Od 278
Lowe v The Queen (1984) 154 CLR 606
House v The King (1936) 55 CLR 499
Kentwell v R (2014) 252 CLR 601
Allesch v Maunz (2000) 203 CLR 172
Teelow v Commissioner of Police [2009] QCA 84
AB v R (1999) 198 CLR 111
Veen v R [1988] HCA 14
Markarian v The Queen (2005) 228 CLR 357
R v Whyte (2002) 55 NSWLR 252
R v Jackson [2011] QCA 103
Weininger v The Queen (2003) 212 CLR 629
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Norbis v Norbis (1986) 161 CLR 513
Lovell v Lovell (1950) 81 CLR 513
Gronow v Gronow (1979) 144 CLRCOUNSEL: Ms N Butler for the appellant
Ms J Hine for the respondent
SOLICITORS: Office of the Director of Public Prosecutions (Qld.) for the appellant
Anderson Telford Lawyers for the respondent
Background
On 20 January 2025, the respondent was convicted on his own plea of guilty in the Magistrates Court at Townsville in relation to one offence of driving a motor vehicle without a driver’s licence, disqualified by a court order, pursuant to section 78(1) and (3)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld.).
The respondent was convicted, fined $1,500 and the minimum licence disqualification period of two years was imposed. The operational period of a suspended term of imprisonment was extended by six months pursuant to section 147(1)(a) of the Penalties and Sentences Act 1992 (Qld.) (PSA)[1].
[1] The suspended sentence was imposed in the Magistrates Court at Townsville on 4 September 2023 when the respondent was sentenced for an offence of disqualified driving. The respondent was sentenced to nine months imprisonment which was wholly suspended for an operational period of 18 months.
The appellant filed a notice to appeal on 20 February 2025. The notice listed the following grounds of appeal:
(a)The learned Magistrate erred by failing to comply with section 147(2) of the PSA to either make an order under section 147(1)(b) and/or failed to state her reasons why it would be unjust to do so in accordance with sections 147(4) of the PSA and to give proper regard to the considerations set out in section 147(3) of the PSA; and,
(b)That the sentence imposed was manifestly inadequate.
The appellant sought leave to amend the first ground of the appeal as follows:
(a)The learned Magistrate’s discretion miscarried in finding that it would be unjust to order the respondent to serve the whole of the earlier period of imprisonment, pursuant to section 147(2) of the PSA.
The amendment sought by the appellant is not opposed by the respondent. Leave is granted to amend the first ground of appeal pursuant to section 224(1)(c) of the Justices Act 1886 (Qld.).
The appeal otherwise is opposed. The appeal was heard before me on 10 June 2025. The factual and legal matrix that I am required to consider is largely agreed between the parties as set out in their respective written outlines of submissions[2].
[2] Outline of submissions on behalf of the appellant filed 20 March 2025 (Appellant’s Outline) and outline of submissions on behalf the respondent filed 16 April 2025 (Respondent’s Outline).
The crux of the appellant’s argument is that the sentence imposed by the learned Magistrate was lenient to the extent of being manifestly inadequate in circumstances where a period of imprisonment was not imposed, with the learned Magistrate instead preferring to impose a fine. The respondent was a mature man with what the appellant described as an appalling traffic history. The respondent had previously been sentenced to a period of imprisonment, albeit a wholly suspended one for a similar offence and was in breach of that order at the time he fell to be sentenced for the offending the subject of this appeal[3].
[3] Transcript of appeal hearing of 10 June 2025, page 1-2
The core of the respondent’s submission is that the sentence imposed by the learned Magistrate was lenient but not manifestly inadequate in all of the circumstances. The sentence imposed was within the acceptable scope of judicial discretion when turning to the number of competing factors or issues to balance during the sentencing exercise. Sentences must be individualised and from the material relied on at first instance the learned Magistrate had a number of competing factors or issues to balance during the sentencing exercise[4].
[4] Transcript of appeal hearing of 10 June 2025, pages 1-3 to 1–5.
On my review and when balancing all relevant considerations, I am persuaded that the sentence imposed was manifestly inadequate.
Accordingly, I allow the appeal.
Legal Framework for the Appeal
The appellant appeals pursuant to section 222 of the Justices Act1886 (Qld).
Pursuant to section 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.
The legal principles with regard to the purpose of an appeal are well settled. 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.[5] 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.[6] In doing so it ought 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.[7]
[5] 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]; Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [9].
[6] White v Commissioner of Police [2014] QCA 12 at [5]-[8]; Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [9].
[7] White v Commissioner of Police [2014] QCA 12 at [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255 at [47]; Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [9].
By operation of section 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”.[8] To succeed, the appellant must establish some legal, factual or discretionary error.[9] Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence.
[8] 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; Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [10]
[9] 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; Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [10]
The decisions of House v The King[10] and Kentwell v R[11] distinguish cases of specific error and indiscernible excess or inadequacy.
[10] House v. The King (1936) 55 CLR 499 at 504 and 505.
[11] Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority).
With respect to appeals against sentence and an appellate court’s power to interfere with the exercise of the discretion of the sentencing court, in House v The King[12] the High Court stated at 504-505:
“But the judgement complained of, namely, sentenced to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. 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.”
[12] (1936) 55 CLR 499
The High Court in Kentwell v R[13] 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.”
[13] Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority).
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.[14] By contrast, absent identifiable specific error, the appellate court ought only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.[15]
[14] Kentwell v R (2014) 252 CLR 60, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority);
Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [11].
[15] 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]; Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [12].
Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried resulting in an inadequate sentence.[16] In that context, it may be vitiated by an error of principle, or by a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.[17]
[16] 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 513 at 519, 525, 534 and 537; Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [11].
[17] 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; Commissioner of the Queensland Police Service v Toby [2025] QDC 22 at [12].
When the court considers the standard to be met on appeal, the criteria succinctly set out in R v Morse[18] is of further assistance:
“To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender…I bear in mind that this Court should not interfere with the sentence simply because its members would have imposed a lower sentence themselves, but only when they are satisfied that, having regard to all relevant factors, the sentence imposed is beyond the acceptable scope of judicial discretion”.
[18] (1979) 23 SASR 98; Respondent’s Outline, [3].
Circumstances of Offending and Sentence Proceedings
The sentence proceeded on an agreed schedule of facts, backgrounded by the respondent’s traffic history. The respondent’s criminal history and non-TORUM history was not relied upon by the prosecutor at first instance. The material filed on behalf of the appellant sought leave to introduce both the respondent’s criminal history and non-TORUM history pursuant to section 223(2) of the Justices Act 1886 (Qld.), which was opposed. At the hearing of the appeal, the appellant accepted that those were matters which ought to have been placed before the learned Magistrate and in those circumstances, did not press its application to introduce that material in the appeal proceedings.
The respondent was 32 years old at the date of the offending and at sentence.
On 12 August 2024, Police detected the respondent driving a grey Toyota utility pulling a trailer not having the number plate attached displayed correctly. He was issued a caution for that. The respondent exited the vehicle and when asked by police, stated that he did not have a licence on his person. Checks conducted by police confirmed that the respondent’s driver licence was court disqualified from 4 September 2023 to 3 September 2025, a period of two years for similar offences. Police then had a conversation with the respondent in which he stated that he was aware that his licence was disqualified, however chose to drive as he had to work in an effort to make money. Police witnessed the respondent working as a roller door installation tradesperson and utilized the vehicle and trailer to carry the items around whilst working.
The prosecutor submitted a number of features in aggravation[19]. The prosecutor relied upon the respondent’s six page traffic history which contained a number of entries for unlicensed driving dating back to 2011. Between 2011 to 2020, the respondent had three unlicensed driving entries (simpliciter)[20]. Since 9 December 2020, there are four entries of disqualified driving by court order. Subsequently (and as noted earlier) on 4 September 2023 the respondent received a 9 month period of imprisonment which was wholly suspended for 18 months. The offending was committed during the operational period of the suspended sentence. The prosecutor submitted that considering his history and that the offending constitutes the fifth occasion since 2020 that the respondent was before the court for a disqualified drive, the only appropriate penalty is that of a period of imprisonment.
[19] Transcript of Proceedings of 20 January 2025 at page 2 line 47 to page 3 line 15.
[20] However it should be noted that there are four unlicensed driving entries for this period as follows: 21 September 2011; 3 August 2020; 2 October 2020 and 10 November 2020.
The respondent’s solicitor tendered material comprising an outline of submissions, psychometric assessment of Alena Cullen dated May 2024, an email from Uniting Care dated 4 July 2024, a character reference by Shaun Slater dated 8 October 2024, a medical certificate by Dr Ebony Bray dated 18 December 2024 and a character reference by Paul Holmkvist dated 11 January 2025[21]. Before the court were a number of matters in mitigation that was considered by the learned Magistrate, including in particular[22]:
[21] Exhibit 2 in the Magistrates Court proceeding.
[22] Respondent’s Outline, [22]; Defendant’s Outline of Submissions [8] – [20] comprising Exhibit 2 in the Magistrates Court proceeding
(a)the respondent’s wife significant medical ailments comprising chronic fibromyalgia, acute arthritis, severe anxiety, depression, post-traumatic stress disorder, psychotic breaks and bipolar personality disorder;
(b)the respondent’s wife not working as a consequence of her medical ailments with the respondent not only acting as her carer but also performing household responsibilities;
(c)the young age of the respondent’s three children: Alena Cullen aged seven, Jason Cullen aged five and Danielle Cullen aged two[23];
[23] Defendant’s Outline of Submissions [8] comprising Exhibit 2 in the Magistrates Court proceeding.
(d)Alena Cullen being deemed to meet the diagnostic criteria for level 2 impairment on the Autism Spectrum Disorder;
(e)the respondent’s extreme financial hardship at the time of driving. The respondent and his wife are not homeowners and jointly had net liabilities exceeding $158,000. Through his previous business the respondent personally owed approximately $70,000 to the Australian Taxation Office and $28,000 to the Palm Island Council;
(f)Mrs Cullen not having family upon whom she could rely with her father being an alcoholic and being estranged from her mother. Mr Cullen’s parents do not reside in the Townsville region.
(g)how the respondent’s extreme financial hardship impacted upon his decision to drive on 12 August 2024;
(h)hardship on the respondent’s family should he be sentenced to an actual term of imprisonment. Without the respondent’s income, Mrs Cullen could not afford the rent as he is the sole income earner;
(i)that the respondent was in new employment for which he did not need to drive;
(j)the respondent’s work history, having worked as a garage door installer for more than 12 years; and,
(k)the early plea of guilty.
Notably, both parties at first instance submitted the appropriate sentence was one of imprisonment, the only contention being the release date.
In sentencing the respondent, the learned Magistrate had regard and acknowledged the aggravating features of the respondent’s offending[24]:
“Once again, this is now the fifth time that you were driving while disqualified, and you’ve put yourself in a very, very serious and dangerous predicament, because you drove whilst on a disqualification period. It’s really – it’s wanton disregard of the law” (emphasis added).
[24] Respondent’s Outline, [24]; Transcript of Proceedings of 20 January 2025 at page 2 lines 2-5
Just prior to handing down the sentence, the learned Magistrate somewhat curiously remarked[25]:
“You’ve come to court today probably thinking that you would get a jail sentence, and in fact 99 cases out of 100 I would not have thought twice before imposing that suspended sentence, but that was meant to stop you from driving. But you’re that one case in a hundred that I think is an unusual case, and I can give you another chance, but don’t stand there again. Don’t make that mistake again because someone else looking at this is going to see this entry and if you were to drive while disqualified again, they’re going to say “whoever was sitting last time has been far too lenient last time” do you understand that?” (emphasis added).
Submissions on Appeal
[25] Transcript of Proceedings of 20 January 2025 at page 2 lines 36-43
Appellant’s Submissions
In the appeal, the appellant submitted that the respondent’s traffic record is indicative of a continuing attitude of disobedience of the law[26].
[26] Appellant’s Outline, [4.5]
The respondent’s traffic record shows convictions for the following traffic offences from 2010 to 2023[27]:
[27]Appellant’s Outline, [4.3]; Exhibit “ESW-03” to the Affidavit of Emma Sue Wealleans affirmed 20 March 2025
(a)4 x disqualified driving
(b)4 x unlicensed driving
(c)1 x driving using handheld mobile
(d)1 x failing to wear seatbelt
(e)15 x exceeding speed limits
(f)7 x using/permit use of unregistered vehicles or vehicle with plate/permit issued for another vehicle
(g)2 x failing to display provisional plates
(h)1 x failing to keep left of double continued dividing lines
(i)1 x overtaking when not safe to do so
(j)1 x driving vehicle at night / reduced visibility no lights operating or visible
The most relevant and recent entries are as follows[28]:
[28] Appellant’s Outline, [4.3]; Exhibit “ESW-03” to the Affidavit of Emma Sue Wealleans affirmed 20 March 2025
Sentencing Date Offence Details Sentence 4 September 2023 Disqualified driving
On 2 February 2023Nine month wholly suspended sentence, operation period of 18 months; two years licence disqualification. 14 April 2021 Disqualified driving
On 19 February 2021Fined $2,000, two years licence disqualification 14 April 2021 Disqualified driving
On 18 February 2021Fined $1,250, two years licence disqualification 12 February 2021 Disqualified driving and using handheld mobile phone
On 9 December 2020Fined $1,500, two years licence disqualification 7 December 2020 Unlicensed driving
On 10 November 2020Fined $250, six months licence disqualification 30 November 2020 Exceeding speed limit by more than 30km/hr, not more than 40km/hr
On 2 October 2020Fined $622.00, referred to SPER 12 November 2020 Unlicensed driving
On 2 October 2020Fined $550, six months licence disqualification 12 November 2020 Unlicensed driving
On 3 August 2020Fined $450, six months licence disqualification 30 September 2020 Exceeding speed limit by more than 20km/hr, not more than 30km/hr
On 3 August 2020Fined $444, referred to SPER
While one’s history cannot overwhelm the sentencing process, the respondent’s antecedents and the offending before the court at first instance demonstrated that he had not been deterred by past orders for like offences, including a suspended sentence[29].
[29] Appellant’s Outline, [4.4]
As discussed by the High Court in Veen -v- R (No 2)[30]:
“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 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”.
[30] [1988] HCA 14 at [14]; Appellant’s Outline, [4.4]
Deterrence, both personal and general, denunciation and community protection were paramount sentencing considerations pursuant to section 9(1) of the PSA. The proper application of such principles ought to have resulted in a sentence greater than a fine and the minimum licence disqualification period. Given the respondent’s continued disobedience of traffic and licensing rules, the sentence that had been imposed on the respondent for the same offence on 4 September 2023, and that there were no additional mitigatory matters outlined at the sentence hearing before the learned Magistrate, a sentence of imprisonment was the only appropriate sentencing option[31].
[31] Appellant’s Outline, [4.5]
The sentence the respondent received was comparative to that of a first-time offender, rather than a mature recidivist offender who committed the offence whilst subject to a suspended sentence for the same type of offending. While the respondent provided material to the court as to hardship and exceptional circumstances, the appellant submits that it is not clear to what extent these were taken into account in the sentence imposed, nor was it articulated as to how those principles applied to the facts in the sentence hearing before the learned Magistrate and on what basis they overwhelmed other sentencing considerations, especially when considering the factors alleged by the respondent as hardship appear to have been long standing factors extant at the time of his earlier similar offending[32].
[32] Appellant’s Outline, [4.6]
Given the respondent’s traffic record and the fact that he had committed the same offence 11 months into the 18 month operational period, the learned Magistrate had not adequately articulated on what basis it could be said to be unjust to impose the whole of the outstanding term of suspended imprisonment. The learned Magistrate acknowledged that “ordinarily…my bottom view is if you’re on a suspended sentence and you breach it by committing the same offence, you can expect to have that suspended sentence imposed”[33]. Rather than considering whether the activation would be unjust, the learned Magistrate reasoned that a suspended sentence would not be imposed “except in very unusual…or exceptional circumstances”[34].
[33] Transcript of Proceedings of 20 January 2025 at page 4 lines 1-14; Appellant’s Outline, [4.8]
[34] Transcript of Proceedings of 20 January 2025 at page 4 lines 1-14; Appellant’s Outline, [4.8]
It was open for the learned Magistrate to invoke the term, have the term of imprisonment run concurrently to the head sentence, and provide the respondent immediate release on parole as contended for by his lawyers and the prosecutor at sentence[35].
[35] Transcript of Proceedings of 20 January 2025 at page 5 lines 25-50; and page 6 lines 1-5; Exhibit “ESW-04” to the Affidavit of Emma Sue Wealleans affirmed 20 March 2025.
Respondent’s Submissions
The respondent submits that the sentence imposed by the learned Magistrate was lenient but not manifestly inadequate. The genesis of this submission lies in the broadness of sentencing discretion and the relevant sentencing principles[36].
[36] Respondent’s Outline, [4]
Sentencing is quintessentially an exercise of judicial discretion exercised on an individualised basis. The High Court has described sentencing as a “synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”[37].
[37] Weininger -v- The Queen (2003) 212 CLR 629, [24]; Respondent’s Outline, [10].
There is no single correct sentence. As asserted by the High Court in Markarian -v- The Queen[38]:
“Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consistent with consistency of approach and as accords with the statutory regime that applies”.
[38] (2005) 228 CLR 357, [27]; Respondent’s Outline, [11]
As observed by Chesterman JA in R -v- Jackson[39]:
“…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”.
[39] [2011] QCA 103, [25]; Respondent’s Outline, [12]
Individualised justice is an important aspect of sentencing. In R -v- Whyte[40], Spigelman CJ noted:
“The maintenance of a broad sentencing discretion is essential to ensure that all of the wide variations of circumstances of the offence and the offender are taken into account. Sentences must be individualised”.
[40] (2002) 55 NSWLR 252, [147]; Respondent’s Outline, [12]
In addition to the matters in mitigation submitted and considered by the learned Magistrate, the learned Magistrate was also entitled to take into account the factual matrix of the offending, including the manner in which the respondent drove and the fact that he did not put other road users or the general public at risk on the occasion that he drove[41]. Whilst deterrence was a relevant sentencing consideration per section 9(1) of the PSA, the offence was not one that endangered the safety of the community. A sentence of imprisonment was still a sentence of last resort, and a sentence that allowed the respondent to remain in the community was preferable[42].
[41] Respondent’s Outline, [23]
[42] Respondent’s Outline, [25]; Section 9(2)(a)(i)(ii) of the PSA.
The learned Magistrate’s sentencing remarks evinces a contemplation of a sentence of imprisonment. However, the learned Magistrate’s analysis resulted in the conclusion that the respondent’s case was “unusual” or an exceptional one warranting a more lenient penalty. Whilst the appellant refers to the respondent’s repeated disregard for the disqualification order in similar circumstances, there was further material before the court in this instance that illustrated significant matters in mitigation and hardship[43].
[43] Respondent’s Outline, [27]
The learned Magistrate only took into account relevant matters[44] in formulating the sentence and did not operate on a misunderstanding or misapplication of fact or law. The transcripts of the hearing and decision illustrate that the learned Magistrate had due regard to the varying and competing sentencing considerations[45]. Under section 147(3) of the PSA, the learned Magistrate was entitled and obliged to also have regard to the respondent’s relevant antecedents and the circumstances in which the offence was committed[46].
[44] Per Markarian -v- The Queen (2005) 228 CLR 357.
[45] Respondent’s Outline, [27]
[46] Respondent’s Outline, [31]
The nature of the Magistrates Court must also be remembered. Whilst the learned Magistrates’ sentencing remarks were not voluminous, the aggravating nature of the offending was considered against the factors in mitigation. It was not a “one sided” consideration.
Whilst both parties at first instance submitted the appropriate sentence was one of imprisonment with the only contention being the release date, the learned Magistrate was not bound by either representatives’ sentencing submission[47].
[47] Respondent’s Outline, [21]
If the court disagrees with the respondent’s ultimate submission that the appeal must fail, then the respondent concurs with the appellant’s submission that if the court were to resentence the respondent, it would be to a term of imprisonment with an immediate parole release[48].
[48] Transcript of appeal hearing of 10 June 2025, page 1-4 line 47 to page 1-5 lines 1-5.
Conclusion
When balancing all relevant considerations, the offending was not minor and comprised repeat offending of a like nature which previously led to a period of imprisonment being imposed, albeit a wholly suspended term of imprisonment.
It was not simply a situation where the penalty imposed was more lenient than what might have been expected. Rather, it was manifestly inadequate and unreasonable in all of the circumstances; noting particularly the acknowledgement on the part of the learned Magistrate the respondent’s “wanton disregard for the law” and that “in 99 cases out of 100”, a sentence involving an actual term of imprisonment was the appropriate penalty.
I am satisfied that the imposition of a fine of a very lenient character in itself is simply outside the range of what might have been appropriate in relation to this matter.
Here it is clear in circumstances where the respondent is burdened with a six-page traffic history, does not have the benefit of youth and had been the recipient of various penalties, including a term of imprisonment subject to an operational period for a suspended sentence, that these were significant considerations, especially considering the respondent’s continued disobedience of traffic and licensing rules. The respondent was clearly not deterred from the penalties imposed for his prior offending. He continued to reoffend.
Given the clear need here for deterrence and punishment in light of the respondent’s traffic history and offending at first instance, the perception that the respondent did not put road users or the public generally at risk as determined by the learned Magistrate did not render it unjust for the suspended sentence to be imposed and should not in itself have prevented a sentence of imprisonment being imposed for the subject offending.
In my view the imposition of a fine was unreasonable and unjust. It fell below what could be considered the most lenient of penalties that might be imposed in relation to the matter. As I have indicated, it is my view therefore that the appeal must be successful.
Orders
The orders of the Court are as follows:
1.Leave is granted to amend the first ground of appeal.
2.Appeal allowed.
3.Except for the period of disqualification imposed on the respondent from holding or obtaining a Queensland driver licence, the sentencing orders imposed by the Magistrates Court at Townsville on 20 January 2025 are set aside.
4.The following sentencing orders are imposed:
(a)For the offence of driving of motor vehicle without a driver licence disqualified by court order, 6 months’ imprisonment;
(b)The 9-month suspended term of imprisonment imposed by the Magistrates Court at Townsville on 4 September 2023 be fully invoked;
(c)Each of the terms of imprisonment are ordered to be served concurrently with one another;
(d)A parole release date in respect to the periods of imprisonment imposed to be fixed as at the date of these orders with the respondent required to report to the probation and parole office at Townsville and obtain a copy of the order by no later than 5:00pm on the next business day following the date of these orders; and,
(e)Convictions recorded.
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