R v Pacaci

[2025] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pacaci [2025] QCA 154

PARTIES:

R
v
PACACI, Zafer
(applicant)

FILE NO/S:

CA No 175 of 2024
DC No 789 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 24 July 2024 (Burnett DCJ)

DELIVERED ON:

26 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2025

JUDGES:

Bowskill CJ, Bradley JA and Callaghan J

ORDERS:

1.   The application for leave to appeal against the sentence imposed on count 1 is granted and the appeal against that sentence is allowed.

2.   The sentence imposed at first instance on count 1 is varied by substituting an operational period of two and a half years.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of producing a dangerous drug in excess of 500 grams, and two counts of possessing a dangerous drug in excess of 500 grams – where the applicant was sentenced to two years and six months imprisonment, suspended after serving six months, for an operational period of five years for count 1 – where the applicant was sentenced to 18 months imprisonment, suspended after six months, with an operational period of 18 months for count 2 – where the applicant was sentenced to two years imprisonment suspended after six months for an operational period of two years for count 3 – whether the operational period of five years in respect of count 1 is manifestly excessive – whether the application for leave to appeal against the sentence should be granted

Penalties and Sentences Act 1992 (Qld), s 9, s 144, s 145

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied
R v Hartnett[2001] QCA 512, cited
R v Tilley (1991) 53 A Crim R 1, considered
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, cited
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

D V Nguyen for the applicant
S R O’Rourke for the respondent

SOLICITORS:

Craven Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  The applicant rented a shed at an industrial estate.  When searched, it was found to contain a complex hydroponic growing facility that was being used for the production of cannabis.  Police located 108 cannabis plants, each approximately one metre tall.  With their roots removed they weighed 30.5 kg (count 1).  Also found were a further 13.8 kg of dried cannabis (count 3) and accoutrements of professional production, such as a vacuum sealer and digital scales.  Additionally, a search of the applicant’s residence yielded a further 3.3 kg of dried cannabis (count 2).  It was alleged, and not disputed, that there was a clear commercial purpose to his activity.

2. The applicant was 41 years of age at the time of the offending.  He was married with two children (nine and 12) and had a good work history.  His criminal history was minor and irrelevant.  He used cannabis to treat chronic back pain, and was recorded to suffer from chronic anxiety and depression.  Some unfortunate business-related incidents had placed him under financial pressure.

3. He did not tell the investigating police anything about his activities.  He did, in the face of evidence which makes it difficult to think he could have done otherwise, enter timely pleas of guilty.

   The sentencing process

4. In the proceedings below, the Crown submitted that a sentence of two and a half years imprisonment would be appropriate.

5. Defence counsel did not contest this submission, but contended in the first instance for a sentence that involved immediate release on parole.  In the alternative, it was submitted that the court would consider an order that allowed for the applicant’s release at “something significantly less than the one-third”.

6. The learned sentencing judge indicated to counsel that he was considering suspending the sentence after six months.  His Honour said he did not think the applicant needed supervision after his release, as he had good prospects of rehabilitation, but that some period of actual custody was required to denounce the offending and deter others.  Counsel then submitted that “perhaps something less than six months could be within your Honour’s sentencing range”.  No submissions were made as to the length of any operational period, and the sentencing judge did not flag with either party what he had in mind in that regard.

7. The sentencing judge rehearsed features of the submissions that had been made to him and concluded by explaining that “all those matters have been factored into crafting a sentence which I think is just in your circumstances”.  He then imposed (on count 1) a sentence of imprisonment for two years and six months which was suspended after six months for an operational period of five years.  On count 2, he imposed a sentence of imprisonment for 18 months which was suspended after six months for an operational period of 18 months.  On count 3, he imposed a sentence of imprisonment for two years which was suspended after six months for an operational period of two years.

   The issue

8. The applicant does not, in this proceeding, impugn either the head term or the period of imprisonment that the applicant was required to serve.  Rather, his single ground of appeal is that:

   “The sentence for Count 1 was manifestly excessive because the learned Judge erred in the exercise of his discretion by imposing an operational period of five years.”

9. This case was argued on the same day that the Court heard R v BEU [2025] QCA 155.

10. These cases required some conceptual consideration of suspended sentences, and the following observations (in [11] – [47]) are applicable to both.

    History

1. The history of suspended sentences in Queensland traces at least to the Offenders Probation Act of 1886.  Section 3(2) of that Act applied to first offenders or those whose only offence had been a crime punishable by no more than three months imprisonment.  A court sentencing such an offender could suspend the execution of the sentence, on terms, “for a period from the date of the sentence equal to the term of the sentence, or if the term of the sentence is less than twelve months, then for the period of twelve months.”[1]

   [1]Underlining added.

2. An amended form of s 3(2) appeared as s 682 in Sir Samuel Griffith’s draft[2] and in 1901 was enacted as s 656 of the Criminal Code. It applied to offenders with no or minor criminal history and if the notional term of imprisonment did not exceed three years. It contemplated only the suspension of the whole of the term of imprisonment imposed,[3] and it remained the case that what we now call the “operational period” could run only for a period “equal to the term of the sentence.”

   [2]Griffith, Sir Samuel Walker, Draft of a code of criminal law: prepared for the Government of Queensland; together with an explanatory letter to the Attorney-General, a table of contents, and a table of the statutory provisions proposed to be superseded by the code (Government Printer, 1897) (Qld).  Notes describe the procedure as an “indulgence…” but that was said in the context of a statute which made provision for whipping, sentences being served in irons and the death penalty.

   [3]A more elaborate version, which amongst other things allowed for partial suspension of a term of imprisonment, was created by the insertion of s 656(2A) in 1943 but this was removed in 1971. These amendments added no new learning about operational periods.

3. In 1992, s 656 was removed and replaced upon enactment of the Penalties and Sentences Act 1992 (Qld) (the Act), which introduced, in Part 8, the concept of suspended sentences as it is understood today.

   Section 144

1. Section 144 of the Act provides:

   “144   Sentence of imprisonment may be suspended

   (1)If a court sentences an offender to imprisonment for 5 years or less, it may order that the term of imprisonment be suspended.

   (2)An order under subsection (1) may be made only if the court is satisfied that it is appropriate to do so in the circumstances.

   (3)An order under subsection (1) may suspend the whole or a part of the term of imprisonment.

   (4)A court must not suspend a term of imprisonment if it is satisfied, having regard to the provisions of this Act, that it would be appropriate in the circumstances that the offender be imprisoned for the term of imprisonment imposed.

   (5)The court must state an operational period during which the offender must not commit another offence punishable by imprisonment if the offender is to avoid being dealt with under section 146 for the suspended sentence.

   (6)The operational period starts on the day the order is made and must be—

   (a)     not less than the term of imprisonment imposed; and

   (b)     not more than 5 years.”[4]

   [4]Section 144 has been amended only once since its enactment and has been in this form since 1993.

2. At the outset it is open to compare an order made under this section with others that can be made within the same statutory scheme, such as those which provide for a judge to nominate the date upon which an offender may be released on or become eligible for parole.  A discretion is exercised in fixing those dates, but the effective duration of the sentence cannot run beyond the length of the term of imprisonment.

3. Section 144 creates the possibility for a term of imprisonment to be relevant for a period which is longer than the term of imprisonment itself. However, nothing in any extraneous materials assists in learning how to apply this section. As is commonly the case, the explanatory note is an exercise in replication rather than explanation. The second reading speech notes that the existing procedure for which s 656 provided had “proved to be ineffective and appears to have largely fallen into disuse,”[5] but said nothing about the way it was envisaged the new provision would actually operate.

   [5]Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 5 November 1992 at 151.

4. To the extent that this Court has made any observations about operational periods[6] they have been understandably concerned with the circumstances of the particular case rather than articulating principles of general application.  In R v Hartnett, however, Chesterman J observed that, whilst s 144 confers a wide discretion to be exercised according to the particular circumstances of each case, generally there should be some proportionality between the length of the suspended term of imprisonment and its operational period.[7]  The same can be said of cases in which comparable provisions have been considered in other jurisdictions.[8]  Although, in Cooper v Parsons, Mildren J observed that the purpose of an operational period is two-fold: to provide an opportunity for the prisoner’s rehabilitation but at the same time to operate as a special (personal) deterrent from re-offending.[9]

   [6]R v Ali [2023] QCA 207; R v Hartnett [2001] QCA 512; R v Kelly [2006] QCA 467.

   [7]R v Hartnett [2001] QCA 512 at p 6 per Chesterman J, McPherson JA and Mackenzie J agreeing.

   [8]R v Zarrinkafsh [2005] VSCA 22; Cooper v Parsons (2012) 31 NTLR 195; [2012] NTSC 34; JED (a minor) v O’Berg [2015] NTSC 7; R v Pemberton [2021] EWCA Crim 1768.

   [9]Cooper v Parsons (2012) 31 NTLR 195; [2012] NTSC 34 at [39].

5. In the United Kingdom, the Sentencing Council has issued a “guideline” which gives “general guidance” that suggests, in a certain context within that jurisdiction:

   “[t]he time for which a sentence is suspended should reflect the length of the sentence; up to 12 months might normally be appropriate for a suspended sentence of up to 6 months.”[10]

   [10]Sentencing Council, General guideline: overarching principles (online, 1 October 2019).

6. However, an examination of the relevant provisions reveals that the systems are sufficiently different for such an observation to be of no real assistance in the application of Queensland legislation.

   Purposes of sentencing

7. The answer to the question posed by this application depends on the proper construction of s 144, which requires consideration of the words used, having regard to the context and purpose of the provision.[11]

   [11]R v A2 (2019) 269 CLR 507 at 520-522 [32]-[36] per Kiefel CJ and Keane J, 545 [124] per Bell and Gageler JJ.

8. To suspend a term of imprisonment, or part of it, means to defer or postpone the requirement to serve the term until a later time.[12]  The condition on which the term is suspended is that the offender does not commit another offence punishable by imprisonment.  If that condition is breached, the discretionary power of the court to order the offender to serve part or all of the suspended term is enlivened.

   [12]Oxford English Dictionary Online.

9. The purpose of the provision, as informed by extrinsic materials, was to “[enlarge] the armoury of sentencing options available to courts”, to enable a court to impose a considerable punishment on an offender, which may “stop short of depriving the offender of liberty, employment and effective rehabilitation within the community”,[13] or limit the duration of any such deprivation, whilst holding the offender to account in the event they commit another offence during the course of the suspended sentence.  In practice, this sentencing option is generally considered appropriate only where it appears to a sentencing judge that conditional release (such as on parole) is not warranted, having regard to the circumstances of the particular offender.

   [13]Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 5 November 1992 at 151.

10. Section 144 confers three separate discretions, all preconditioned upon the court sentencing an offender to imprisonment for five years or less (s 144(1)).

11. The first involves the question whether to order that the term of imprisonment be suspended at all (s 144(1)).  The court may only do that if satisfied it is appropriate in the circumstances (s 144(2)).

12. The second involves the question whether the whole or only part of the term of imprisonment should be suspended (s 144(3)).

13. The third is the further and separate discretion as to the duration of the “operational period”, which the court is required to state under s 144(5).

14. The only express parameters provided in s 144 for the duration of the operational period are that it must not be less than the term of imprisonment imposed and it must not be more than five years (s 144(6)).

15. As noted, under the earlier iterations of suspended sentence provisions, there was no option but for an operational period that ran for the same length as the term of imprisonment. However, it is clear from the language used that, s 144 confers a discretion on the court to suspend a term of imprisonment for an operational period that is longer than the term of imprisonment.

16. The question for present purposes is what are the principles which guide the exercise of that discretion?

17. The context of the provision includes the Act as a whole. It is relevant in that regard that the discretion – to set an operational period which is longer than the term of imprisonment (an “extended operational period”) – was created at the same time as the statutory requirement that every sentence should reflect chosen purposes.

18. The purposes are those identified in s 9(1) of the Act:

    “9      Sentencing guidelines

    (1)The only purposes for which sentences may be imposed on an offender are—

    (a)     to punish the offender to an extent or in a way that is just in all the circumstances; or

    (b)     to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated; or

    (c)     to deter the offender or other persons from committing the same or a similar offence; or

    (d)     to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or

    (e)     to protect the Queensland community from the offender; or

    (f)     a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).”[14]

    [14]Underlining added.

19. As defined in s 4 of the Act, “sentence” means “a penalty or imprisonment ordered to be paid or served, or another order made, by a court after an offender is convicted, whether or not a conviction is recorded”. In a case such as the present, the “sentence” therefore includes the order of imprisonment as well as the order that the term of imprisonment be suspended, in whole or in part, and the operational period set under s 144(5).

20. It follows that the determination as to the appropriate operational period in any given case must also be made by reference to one or more of the purposes in s 9(1).

21. The respondent agreed that this could not be done by reliance upon the purposes of general deterrence or denunciation – the length of an operational period says little to anyone other than the person being sentenced.

22. It can be accepted that the Damoclean presence of an operational period may have the effect of punishing an offender, but it cannot be thought that it was intended to be used in that way.  Its deployment for that purpose would be too subtle and contingent.

23. An extended operational period may, however, serve as a personal deterrent, and concurrently work to cement an offender’s rehabilitation.  In those ways community protection can be achieved.  The service of one or more of those purposes may, if the need is present in the particular case, justify an extended operational period.

24. It should not be difficult in any given case to express that justification in the form of reasons.  The discipline involved in this process is calculated to reveal fallacies in conclusions that are not supported by the applicable principles.[15]  Otherwise it may be argued that applicable “principle was not applied, rather than applied but not recorded.”[16]  Anchoring the need for an extended operational period to the service of a statutory purpose may defeat such arguments.

    [15]AK v Western Australia (2008) 232 CLR 438 at [108].

    [16]Fleming v The Queen (1998) 197 CLR 250 at [30].

    Proportionality

25. There is another dimension to the way in which the validity of an extended operational period might be assessed, and that is proportionality.

26. There are two aspects to this: the requirement for a sentence to be proportionate to the objective gravity of the crime; and for some internal proportionality as between the particular elements of a sentence.

27. As to the first, it is “a basic principle of sentencing law … that a sentence of imprisonment imposed by a court should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances”.[17]

    [17]Hoare v The Queen (1989) 167 CLR 348 at 354.

28. That common law requirement is reflected in the s 9(1)(a) requirement, to punish an offender to an extent and in a way that is just in all the circumstances.

29. Relevantly for present purposes the requirement for proportionality, implicit in the notion of a punishment that is just in all the circumstances, extends not only to the term of imprisonment imposed but also to the operational period during which that term of imprisonment is suspended.

30. It is well established that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender.[18] The principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; although it is appropriate – and indeed required by s 9(1)(e) of the PSA – to consider community protection in determining what is an appropriate sentence.[19]

    [18]Veen v The Queen (1979) 143 CLR 458 at 467, 468, 482-483, 495; Veen v The Queen [No 2] (1988) 164 CLR 465 at 472.

    [19]Veen v The Queen (No 2) (1988) 164 CLR 465 at 473 and 487- 488.

1. As to the second aspect, the application of s 144 is, as an exercise in sentencing, inherently discretionary. It will be impossible to insist on mathematical formula, legitimate expectations as to “ratios” or indeed to lay down any rule of general application. The discretion must be exercised having regard to the particular circumstances of each case, and no two sets of circumstances will ever be the same.

2. However, whilst no formula is involved, the concept of structuring a sentence that involves a term of imprisonment with additional components is not new, and has always demanded regard for the concept of proportionality.  For example, when considering the proportionality between a term of actual custody and any further period to be spent on parole, Gibbs CJ wrote:[20]

   “No doubt there should be an appropriate relationship between the sentence imposed on an offender and the minimum term after which he becomes eligible to be released on parole. What is appropriate must depend very much on the circumstances of the case, and the exact relationship between those two periods is something that has to be determined in the exercise of a wide discretion.”

   [20]Lowe v The Queen (1984) 154 CLR 606 at 610. See also Brennan J at 620: “There must be such a relationship between the head sentence and the non-parole period that it is appropriate”. Dawson J at 625: “Having regard to the purpose to be served by the fixing of a non-parole period, it is obvious that it should not be made disproportionate to the full term. It nevertheless remains very much a matter within the discretion of the sentencing judge”.

3. Such observations are applicable here.  Sometimes disproportionality will be self-evident.  For instance, in R v Tilley,[21] Thomas J (as his Honour then was) suggested that a sentence of five years imprisonment accompanied by a recommendation for parole after two weeks revealed “a self-contradiction or … a double standard.”  De Jersey J (as his Honour then was) thought there was “an oddity” about that penalty which cried out for an explanation, and that it was unfortunate the sentencing judge “did not explain very precisely and directly why he considered it appropriate.”[22]  In the absence of an explanation a “self-contradictory” order of this kind could not survive appellate scrutiny.

   [21]R v Tilley (1991) 53 A Crim R 1 at 4.

   [22]Ibid at 5.

4. On the other hand, in some cases the explanation for an extended operational period in the allocated proportions may be obvious.  In every case, however, this aspect of a sentence – which is as reviewable as any other – must be justifiable either on its face or by reference to reasons that are discoverable.

   Was the extended operational period in this case manifestly excessive?

5. In the present case, the sentencing judge arrived at the decision that a sentence of two and a half years’ imprisonment was appropriate for the applicant’s crime of possessing a substantial quantity of cannabis for a commercial purpose.  His Honour’s reasons for requiring the applicant to serve a relatively short part of that term (six months) in actual custody centred principally upon the need for denunciation and general deterrence.

6. The sentencing judge found that the applicant had good prospects of rehabilitation and, for that reason, considered it appropriate to impose a sentence which did not involve any form of supervision (such as, on parole) following the period to be served in actual custody.  The effect of making an order that part of the term of imprisonment be suspended is that the applicant was released unconditionally, following the six months required to be served, and would not be required to serve the remaining two years unless ordered to do so under s 147.[23]

   [23]See s 145 of the Act.

7. However, despite that conclusion, the sentencing judge imposed an operational period, for the purposes of s 144(5), of five years – double the term of imprisonment imposed and ten times the period deemed necessary for actual imprisonment. His Honour did not expressly explain the basis upon which he decided to do so. The inferred reason was personal deterrence and community protection. As his Honour said:

   “… it is better to have you out there in the workforce, earning a living, paying your taxes, looking after your family, than it is to have you banged up in prison. But if you breach, as I will explain in a short time, you will end up back there, and the community will act protectively and put you back in custody if you do breach some time over the next five years. So just be mindful of that upon your release from custody.”

8. And as his Honour emphasised:

   “Now, you need to understand, Mr Pacaci, that if you commit another offence which carries with it a term of imprisonment any time over the next five years, you can be called upon to have the balance of the outstanding sentence activated. So after you are released from custody, you will still owe the community two years in custody. You commit another offence, as I say, that carries with it a term of imprisonment, then that remaining sentence can be activated and see you go back into custody. One thing I can almost guarantee you: if it is a drug offence, this sentence will be activated. So just be conscious of that.”

9. This aspect of the sentence infringed the principle of proportionality.

10. Although the language of s 144 contemplates an operational period which is longer than the term of imprisonment imposed, it is necessary for a sentencing judge to articulate the purpose for so doing, having regard to the scope of permissible purposes under s 9(1) of the PSA, and to bear in mind the principle of proportionality, having regard to the term of imprisonment which has been imposed.

11. In a case such as this, where the sentencing judge finds the offender has good prospects of rehabilitation, and does not require supervision following their release from custody, deferring the conditional liability to serve the balance of the term of imprisonment for double the length of that term is not proportionate, either in terms of the gravity of the crime having regard to the objective circumstances, or as between the different elements of the sentence.

12. The sentence imposed on count 1 was therefore manifestly excessive, because the duration of the operational period was plainly unjust or unreasonable. There being no objective basis on which to extend the operational period beyond the term of imprisonment, having regard to the purposes under s 9(1), the operational period should be two and a half years.

13. It is therefore appropriate to order that:

    (a)The application for leave to appeal against the sentence imposed on count 1 is granted and the appeal against that sentence is allowed.

    (b)The sentence imposed at first instance on count 1 is varied by substituting an operational period of two and a half years.