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 2024DIVISION:
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, citedCOUNSEL:
D V Nguyen for the applicant
S R O’Rourke for the respondentSOLICITORS:
Craven Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
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.
The applicant was 41 years of age at the…
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- AGLC
- R v Pacaci [2025] QCA 154
- Case
- [2025] QCA 154
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the operational period of five years for count 1 was manifestly excessive and if the application for leave to appeal against the sentence should be granted. The court had to consider the principles of proportionality and the permissible purposes for which an operational period could be extended, as outlined in the Sentencing Act.
The court found that the sentencing judge had not provided a clear explanation for the extended operational period of five years, which was double the term of imprisonment imposed. The court held that such an extended operational period infringed the principle of proportionality and that the sentencing judge should have articulated the purpose for the extension. Given the lack of justification and the infringement on the principle of proportionality, the court granted the application for leave to appeal and allowed the appeal against the sentence on count 1. The operational period was varied to match the term of imprisonment imposed, being two and a half years.
The final orders of the court included granting the application for leave to appeal against the sentence imposed on count 1, allowing the appeal, and varying the sentence by substituting an operational period of two and a half years.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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? 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. 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. 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.” 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.” This aspect of the sentence infringed the principle of proportionality. 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.