SUPREME COURT OF QUEENSLAND

CITATION:	R v Palmer [2023] QCA 118	
PARTIES:	R
v
PALMER, Stuart William
(appellant)	
FILE NO/S:	CA No 174 of 2022
DC No 228 of 2022
DC No 693 of 2022	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Application	
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 4 April 2022 (Burnett DCJ)	
DELIVERED ON:	Date of Orders: 9 February 2023
Date of Publication of Reasons: 2 June 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	9 February 2023	
JUDGES:	Mullins P, Bond JA and Martin SJA	
ORDERS:	Date of Orders: 9 February 2023
1.	Application for leave to appeal against sentence granted.
2.	Appeal against sentence allowed.
3.		Set aside the sentence of six months’ imprisonment for count 3 on indictment no 693/22 and in lieu order that the appellant be released under the supervision of an authorised Corrective Services officer for a period of 12 months and that he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days of release from custody to an authorised Corrective Services officer at Brisbane (Spring Hill) and a conviction is recorded.
4.		Set aside the fixing of a parole release date on 27 June 2022 [and] the sentencing judge’s decision not to make a presentence custody declaration.
5.		Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it is declared that the dates between which the appellant was held in presentence custody were:
(a)		between 2 March 2020 and 21 December 2020 (295 days);
(b)	between 17 March 2021 and 9 April 2021 (24 days);
(c)		between 13 June 2021 and 15 October 2021 (125 days); and
(d)		between 16 February 2022 and 21 June 2022 (126 days)
and it is declared that 570 days, namely between 2 March 2020 and 21 December 2020, between 17 March 2021 and 9 April 2021, between 13 June 2021 and 15 October 2021 and between 16 February 2022 and 21 June 2022 is taken to be imprisonment already served under the sentences.
6.		In respect of each of the sentences of imprisonment imposed by the sentencing judge on 22 June 2022 (other than the sentence for count 3 on indictment no 693/22 which has been varied by these orders) order that the term of imprisonment be suspended after serving a period of 570 days’ imprisonment and the appellant must not commit another offence punishable by imprisonment within a period of three years if to avoid being dealt with for the suspended term of imprisonment.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to seven offences of burglary and stealing, two counts of unlawfully using a motor vehicle, dangerous operation of a motor vehicle, attempted burglary and two counts of stealing – where the applicant was sentenced to three years’ imprisonment on the burglary and stealing and concurrent sentences for the other counts with a fixed parole release date five days after the sentence and no presentence custody declared – where a presentence report from a psychologist who had treated the applicant over a period of 15 years was provided to the prosecutor and the Chambers of the sentencing judge but the applicant was not permitted to tender the report on the sentence hearing due to an error by the sentencing judge and prosecutor about the availability of the report for use at the sentence hearing – where the report provided relevant information for the purpose of sentencing the applicant that was not otherwise before the sentencing judge – where the sentencing judge’s mistake of fact as to the availability of the psychologist’s report enabled the Court to re-sentence the applicant – where on resentence greater weight was given to the link between the applicant’s PTSD and his abuse of alcohol and his criminal offending and greater allowance was given to presentence custody that had not been previously been taken into account and for the application of the totality principle – where a presentence custody declaration was also made
Penalties and Sentences Act 1992 (Qld), s 159A
R v Whitely (2021) 8 QR 283; [2021] QSC 154, cited
R v Wilson (2022) 10 QR 88; [2022] QCA 18, cited
R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited	
COUNSEL:	The appellant appeared on his own behalf
D Kovac for the respondent	
SOLICITORS:	The appellant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent	
[1]	THE COURT:  Mr Palmer pleaded guilty when arraigned in the District Court on 4 April 2022 to the three counts on indictment number 228 of 2022 (the first indictment) and four counts on indictment number 693 of 2022 (the second indictment) and to which I will refer collectively as the seven offences.  The offending on the first indictment was committed on 29 January 2020 and comprised burglary and stealing of a set of keys belonging to one Mr Hunt (count 1), unlawfully using Mr Hunt’s motor vehicle (count 2) and stealing $200, an Apple watch, wireless Air Pods and a quantity of tools worth approximately $4,000 from Mr Hunt (count 3).  Mr Palmer was released on bail and the offending on the second indictment was committed on 2 March 2020 whilst Mr Palmer was on bail.
[2]	The complainant in relation to counts 1 and 3 on the second indictment was the owner of a Triton utility and a caravan that he was preparing for holidays.  The keys were in the ignition of the vehicle while the complainant completed tasks in the house.  Mr Palmer entered the vehicle and drove off towing the caravan (count 1 – unlawfully using a motor vehicle).  The complainant together with his wife and son endeavoured unsuccessfully to block Mr Palmer from exiting a cul de sac into which he had driven the utility.  As Mr Palmer drove past the complainant’s house, the caravan swerved and collided with the front of the complainant’s wife’s car.  The complainant and his wife then drove in the complainant’s wife’s car and followed Mr Palmer.  They observed Mr Palmer speed through roadworks, hitting signs and speeding past trucks and workers and driving on the wrong side of the road.  He eventually drove into the end of another cul de sac, hit a tree and left the vehicle on foot.  This course of driving comprised the offence of dangerous operation of a vehicle (count 4).  The subject of the stealing count (count 3) was the complainant’s CB radio that was missing from the utility.  The complainant had to pay the excess to his insurer for the repairs to the utility.  The caravan was written off by the insurer and the total amount claimed by the insurer was $26,108.  Count 2 on the second indictment (attempted burglary) related to another complainant who later the same morning heard his dining room door open and saw Mr Palmer sliding open his back door.  When the complainant confronted him, Mr Palmer fled.  The police were called by the complainant and neighbours spotted Mr Palmer.  He was arrested by police but not interviewed due to intoxication.
[3]	Mr Palmer appeared on his own behalf for the purpose of the sentencing hearing.  Submissions were made on both 4 and 5 April 2022.  The sentencing hearing was adjourned until 17 June 2022 to facilitate the preparation of a presentence report by Mr Palmer’s treating psychologist, Ms Bardsley.  Ms Bardsley prepared a report dated 14 June 2022.  There was an issue over the payment of Ms Bardsley’s fees.  Ms Bardsley did not consent to the use of her report until the payment of her fees was resolved.  On that basis, the prosecutor who had received the report did not view it.  Mr Palmer was unable to pay for the report immediately.  Mr Palmer tendered numerous documents on which he sought to rely at the hearing on 17 June 2022.  The sentence hearing was adjourned until 22 June 2022.  It appears that the sentencing judge and the prosecutor believed that the position on that day remained the same in that Ms Bardsley’s report was available, subject to her being paid.  Mr Palmer indicated to the sentencing judge that he wished to proceed with the sentencing without the benefit of Ms Bardsley’s report.  The report was therefore not tendered for the purpose of the sentencing, even though it had been provided to both the prosecutor and to the Chambers of the sentencing judge.  The sentencing judge made it clear at the sentencing hearing that he did not read Ms Bardsley’s report.
[4]	The following sentences were imposed on 22 June 2022.  For the burglary and stealing of the keys on the first indictment, Mr Palmer was sentenced to three years’ imprisonment.  For each count of unlawfully using a motor vehicle, he was sentenced to 18 months’ imprisonment.  For the count of stealing on the first indictment, he was sentenced to six months’ imprisonment.  He was also sentenced to six months’ imprisonment for each of the attempted burglary and stealing on the second indictment.  He was sentenced to two years’ imprisonment for the dangerous operation of a motor vehicle.  All sentences were concurrent.  The parole release date was fixed at 27 June 2022.  The indictments were endorsed with the statement “No pre-sentence custody declaration”.
Grounds for application to appeal
[5]	Mr Palmer also appeared on his own behalf on this application.  In general terms, Mr Palmer applied for leave to appeal on the ground the sentence was manifestly excessive.  The essence of Mr Palmer’s application was that there was a failure to apply s 159A of the Penalties and Sentences Act 1992 (Qld) (the Act) or take into account periods he spent in custody which were never applied to any sentences imposed on him.  Mr Palmer raised as a specific matter that time spent in custody between 16 October 2018 and 12 May 2019, between 16 June and 7 November 2019 and between 15 October and 22 November 2021 was not considered in determining the sentence.  Mr Palmer also raised as a ground that Ms Bardsley’s presentence report was made available to the sentencing judge and the prosecutor and not to him.
Mr Palmer’s antecedents
[6]	Mr Palmer was 43 years old when he committed the offences.  His criminal history commenced at age 17 years.  His first serious offending was committed in 1994 when he was charged with seven counts of break and enter dwelling house with intent and other property related offences and assaults for which he was given a wholly suspended sentence of imprisonment for two years, community service and probation.  He breached those orders and was dealt with for further offences that resulted in the suspended term being fully activated on 9 October 1998 and resulting in a period of imprisonment of three years and three months.  The most serious entry on his criminal history was his conviction after trial for attempted murder of a police officer committed on 4 June 2000 for which he was sentenced to imprisonment for 17 years.  He escaped lawful custody on 9 March 2001 and committed further offences of dangerous operation of a vehicle, unlawful use of a vehicle, serious assault and receiving property obtained in Queensland.  He was sentenced to a further one year’s imprisonment cumulative upon the sentence he was serving for attempted murder.  He was sentenced to a further three months’ imprisonment on 26 November 2003 for possessing prohibited articles in prison.  In relation to this period of imprisonment of 18 years and three months, he was first released on parole during 2015.  It was during this lengthy period of imprisonment that Mr Palmer commenced treatment with Ms Bardsley.
[7]	There is a gap in Mr Palmer’s criminal history until 2016 when he was dealt with in the Magistrates Court in June and December 2016 for the summary offence of trespass – entering or remaining in dwelling or yard.  Then followed entries in his criminal history between March 2018 and August 2020 for street offences and breaches of bail or failing to appear in accordance with undertaking.  His period in custody from 17 October 2018 was complicated by the fact that he was charged with a series of offences on 16 October 2018 for which he was held on remand between 17 October and 20 December 2018 (65 days) and subsequently he successfully appealed against convictions entered on 20 August 2020 for common assault and assaults occasioning bodily harm committed on 16 October 2018 and those charges were subsequently withdrawn.  No declaration was made on 20 August 2020 in respect of the period in custody of 65 days when Mr Palmer was convicted of commit public nuisance and contravene direction or requirement, both committed on 16 October 2018, and he was not further punished.  But for the presentence custody, those two street offences would not have attracted a sentence of imprisonment of 65 days.  It was detrimental to Mr Palmer being returned to custody on 16 October 2018, as his parole for his lengthy period of imprisonment was cancelled and he ended up serving the balance of that sentence which did not expire until 10 May 2019.
[8]	According to the presentence custody certificate dated 9 July 2020 that was tendered by Mr Palmer before the sentencing judge, Mr Palmer was released from custody on 10 May 2019 but was returned to custody on 15 June 2019 when he had been charged with offences alleged to have been committed on that date.  He remained in custody for 144 days until bail was granted on 7 November 2019.  Most of the charges from 15 June 2019 were dismissed on 8 July 2020.  The balance of the charges of trespass, possession of drugs and possess knife in public were withdrawn by the police and dismissed on 30 September 2020.  As asserted by Mr Palmer before the sentencing judge, that period of 144 days does not appear to have been the subject of a presentence custody declaration.
[9]	On 30 September 2020 Mr Palmer was dealt with in the Sandgate Magistrates Court for offending committed around the same period as the seven offences.  These offences were receiving tainted property on a date unknown between 26 and 29 January 2020, fraud-dishonest application of the property of another committed on 28 January 2020, receiving tainted property on 3 February 2020 and eight charges of fraud-dishonestly gain benefit/advantage committed on 3 February 2020.  The offending was much less serious than the subject offences.  It involved Mr Palmer’s receiving a debit Mastercard that was tainted property which he then used to buy tobacco products, alcohol, pharmaceutical products and groceries.  Each separate purchase was under $100 and was charged as a separate offence.  He was sentenced to concurrent terms of imprisonment of 171 days which had been served in presentence custody between 2 March and 19 August 2020.
[10]	Mr Palmer remained in custody on remand for the offences on the second indictment between 20 August and 21 December 2020 (124 days) when he was released on bail.  The period that he was held in remand during 2020 for the offences on the second indictment was 295 days in total between 2 March and 21 December 2020.  Mr Palmer breached his bail condition on 1 January and 1 February 2021 and also failed to appear in accordance with his undertaking on 3 February 2021.  These three charges were dealt with in the Cleveland Magistrates Court on 18 February 2021 when Mr Palmer was fined.  He was fined again in the Brisbane Magistrates Court on 13 March 2021 for breach of bail condition committed on 4 and 8 March 2021.  He was convicted in the Cleveland Magistrates Court on 17 March 2021 for failure to appear in accordance with undertaking on 17 March 2021 when he was convicted and not further punished.  He was before the Brisbane Magistrates Court on 19 March 2021 for breach of bail condition on 25 December 2020 and 25 January 2021 for which he was fined.  He was in custody between 17 March and 9 April 2021 (24 days) before he was given bail in relation to the subject charges.  On 3 June 2021, Mr Palmer was convicted of five breaches of bail condition committed on 9, 13, 13, and 20 April and 31 May 2021 for which he was sentenced to 14 days’ imprisonment that was suspended for nine months.
[11]	On 7 June 2021, Mr Palmer was dealt with in the Brisbane Magistrates Court for breaches of bail condition on 4 and 7 June 2021 and the operational period for the suspended sentence imposed on 3 June 2021 was extended by one month.  Two further breaches of bail condition committed on 8 and 10 June 2021 were dealt with in the Brisbane Magistrates Court on 11 June 2021 and the operational period of the suspended sentence was extended by one month.  On 15 October 2021 Mr Palmer was convicted in the Brisbane Magistrates Court of wilful damage of police property committed on 11 June 2021 and breach of bail condition committed on the same date.  He was sentenced to imprisonment for 110 days and given a parole release date of 15 October 2021.  The suspended sentence of 14 days was activated and ordered to be served cumulatively on the sentence of 110 days.  It is apparent that the intention was to sentence Mr Palmer to the period for which he had been in presentence custody between 13 June and 14 October 2021 which would have meant that the sentence had been completely served on his release from custody on 15 October 2021.  He reported to Community Corrections “late” on 19 October 2021 and as his response to supervision was poor, his parole order was suspended on 24 November 2021 and cancelled on 10 February 2022.  The sentence imposed on 15 October 2021 was reopened on 21 March 2022 when it was declared that 124 days spent in presentence custody between 13 June and 14 October 2021 be deemed time already served under the sentence.  On the basis Mr Palmer had been on parole since 15 October 2021, he was returned to custody on 16 February 2022.  That would not have occurred, if the declaration in respect of the 124 days in presentence custody had been made when Mr Palmer was sentenced on 15 October 2021.
[12]	The presentence custody certificate that was put before the sentencing judge by the prosecutor showed that a total of 570 days was able to be declared as presentence custody for the subject offences, namely 295 days between 2 March and 21 December 2020, 24 days between 17 March and 9 April 2021, 125 days between 13 June and 15 October 2021 and 126 days between 16 February and 21 June 2022.
[13]	In a further appearance before the Brisbane Magistrates Court on 8 April 2022, Mr Palmer was convicted of three charges of failure to appear in accordance with undertaking, nine charges of breach of bail condition and one charge to fail to take reasonable care and precautions in respect of syringe or needle.  He was sentenced to seven days’ imprisonment suspended for two months.
[14]	The updated presentence custody certificate tendered by the respondent on the hearing of the application in this Court showed that at the date of hearing of the application, he had been held on remand from 31 July 2022 for the three offences which it was alleged he committed on 31 July 2022, namely the evasion offence, driving without licence (disqualified by a court order) and possessing dangerous drugs.  That was consistent with the further information provided by Mr Palmer that the two offences that it had been alleged he committed on 30 July 2022 had been withdrawn by the police and dismissed in the Magistrates Court on 19 January 2023.
[15]	A medico-legal assessment dated 16 July 2020 of Mr Palmer prepared by psychiatrist Dr Foxcroft for a civil proceeding brought by Mr Palmer was tendered before the sentencing judge.  That assessment expressed the opinion that Mr Palmer had developed a clinically significant post-traumatic stress disorder (PTSD) and secondary poly substance use disorder following a serious incident that occurred whilst Mr Palmer was on remand in a youth detention centre when he was aged about 15 years.  Dr Foxcroft noted that Mr Palmer drank alcohol heavily when he was out of custody.
[16]	Letters from psychologist Ms Bardsley of various dates addressed to the Parole Board or the Presiding Magistrate about her treatment of Mr Palmer over many years were also tendered before the sentencing judge.  In the letter dated 24 July 2020, Ms Bardsley expressed her opinion that Mr Palmer “requires long term psychological therapy to address his psychological issues, Posttraumatic Stress Disorder and Autism together with his institutionalised personality traits as well as intervention into his psychosocial issues”.  In the letter dated 21 March 2022, Ms Bardsley noted that she had been Mr Palmer’s ongoing psychologist for some 15 years and that during sessions, therapy had addressed “Mr Palmer’s autism, relationship issues, his problematic homelessness and his cognitive distortions, as well as his offending behaviour”.
The sentencing remarks
[17]	After summarising the statements of facts for the offences on both indictments, and referring to Mr Palmer’s criminal history, the sentencing judge dealt in detail with Mr Palmer’s appearances before the courts from 2020 onwards, noting that Mr Palmer had been “largely non-compliant with Court orders and parole”.  The sentencing remarks included the following.  There had been delay in the resolution of these proceedings due to various breaches of bail and changes of lawyer by Mr Palmer.  Some of that had its genesis in Mr Palmer’s efforts to obtain a report from Ms Bardsley but time had defeated any positive advantage that such a report would have achieved.  The sentencing judge then summarised Mr Palmer’s antecedents from Dr Foxcroft’s report dated 16 July 2020.  By the late 1990s Mr Palmer was a heavy user of amphetamines.  Dr Foxcroft diagnosed Mr Palmer as suffering from a significant PTSD and secondary poly substance abuse disorder following an incident at a youth detention centre in 1990.  Full credit was given for a timely plea.
[18]	On the issue of totality, the sentencing judge worked out that Mr Palmer had served in the order of 17 months in custody of which about eight or nine months could be attributed to other sentences served by Mr Palmer.  In the ordinary course, Mr Palmer should have expected to serve 16 months in custody of a sentence of imprisonment of four years for the subject offending.  Rather than engage in any precise arithmetic calculation, a head sentence of three years would reflect moderation for the non‑declaration of custody and the matters of presentence custody which were non‑declarable but in respect of which some credit should be allowed and a parole release date was set for 27 June 2022.
[19]	Although the indictment was not endorsed as required by s 159A(3B) of the Act with the dates between which the offender was held in presentence custody in respect of which it was proposed that no time would be taken to be imprisonment already served under the sentence, the sentencing judge identified in the sentencing remarks the following periods of time which fell into that category:
•	between 2 March and 19 August 2020 (171 days);
•	between 20 August and 21 December 2020 (124 days);
•	between 17 March and 9 April 2021 (24 days); and
•	between 16 February and 21 June 2022 (126 days).
[20]	The reason for not declaring the period between 2 March and 19 August 2020 was expressed that Mr Palmer was serving a sentence that was imposed on 30 September 2020 (which was reflected in the criminal history).  In relation to the other three periods referred to by the sentencing judge that were not the subject of a declaration of time served under the sentence, the sentencing judge explained that those periods would not be declared, as they had been taken into consideration in the moderation of the head sentence.
Were there errors in the sentencing process?
[21]	The respondent disclosed frankly to this Court on the hearing of the application that an error had been made by the sentencing judge and the prosecutor on 22 June 2022 that Ms Bardsley was still refusing to permit her report dated 14 June 2022 being used in connection with the sentence.  An email from Ms Bardsley dated 21 June 2022 to the sentencing judge’s associate and an email address for the respondent was tendered on the hearing of this application (exhibit 2) which informed the sentencing judge and the legal officer in the respondent’s office who was handling the file that Ms Bardsley had advised Mr Palmer in a telephone call on 20 June 2021 that she would allow her report to be used in the court.  She had not previously understood that it was Mr Palmer who was responsible for the payment for the report.  She was aware that Mr Palmer was impecunious and had no ability to pay for the report.  She had been unable to forward the report to Mr Palmer in custody.  A factual error was made by the sentencing judge as to the availability of the report for the purpose of the sentencing.  The respondent did not oppose Mr Palmer’s being given leave to adduce Ms Bardsley’s report dated 14 June 2022 for the purpose of the application before this Court and that leave was given.
[22]	Ms Bardsley’s report had the advantage of being prepared close to the sentencing date after three video interviews of Mr Palmer on 20 April, 30 May and 13 June 2022 and on the basis of regular psychological therapy sessions that Mr Palmer undertook on 10 occasions in 2021 and on 17 January and 9 February 2022 with Ms Bardsley.  Ms Bardsley also had the further advantage of having treated Mr Palmer over a period of 15 years.  As Dr Foxcroft’s report focused on the issue of PTSD and poly substance abuse that was relevant to Mr Palmer’s civil proceeding, Dr Foxcroft’s report did not deal with Mr Palmer’s autism which had been referred to in Ms Bardsley’s letters.  Ms Bardsley’s report detailed the testing undertaken of Mr Palmer to measure the social impairment associated with his autism spectrum disorder (ASD).  Ms Bardsley concluded at paragraph 11.24 of the report that Mr Palmer’s score “places him in the severe range and indicates deficiencies in reciprocal social behaviour that are clinically significant” which lead to “severe and enduring interference with everyday social interactions”.  That resulted in a clinical diagnosis by Ms Bardsley of ASD of moderate severity.  Ms Bardsley expressed the opinion that Mr Palmer met the DSM‑5 diagnostic criteria for PTSD, both chronic and severe, due to the incident at the detention centre.  Ms Bardsley expressed the opinion that:
“Mr Palmer’s inability to manage his PTSD symptoms had led him to long-term poly substance abuse and dependence, criminal behaviour and subsequent significant terms of imprisonment.”
[23]	Ms Bardsley recommended that Mr Palmer undertake long-term psychological intervention “to develop and demonstrate a healthy sense of respect for social norms, the rights of others, and the need for honesty”.  She also recommended intervention to address his diagnosed ASD.  Ms Bardsley’s report therefore provided relevant information for the purpose of sentencing Mr Palmer that was not otherwise before the sentencing judge.
[24]	Mr Palmer’s ground for his application that was based on his misunderstanding that Ms Bardsley’s presentence report had been used by the sentencing judge and the prosecutor for the purpose of the sentencing should be treated as a ground based on the mistake of fact made by both the sentencing judge and the prosecutor that Ms Bardsley’s report was unable to be used at the sentencing hearing.  Although Mr Palmer did not formulate the grounds for his application for leave to appeal with precision, there were three substantial issues broadly raised by his submissions that were relevant to whether the sentence was manifestly excessive: totality, presentence custody and the effect of his PTSD.
[25]	The mistake of fact about the availability of Ms Bardsley’s report for the purpose of the sentencing was sufficient to enable this Court to re-sentence Mr Palmer.  In the course of doing so, it is relevant to consider the broad issues otherwise raised by Mr Palmer to challenge the sentences imposed by the sentencing judge.
[26]	Even though not entitled to a s 159A declaration in respect of the period of approximately two months spent on remand between 17 October and 20 December 2018, the fact that Mr Palmer had spent those two months in custody was a matter for which allowance could have been made in the sentencing on 22 June 2022, as was the consequence that he remained in custody until 10 May 2019 to complete the sentences that included the sentence for attempted murder.  It was also appropriate for Mr Palmer to urge the sentencing judge to give him credit for the period he had spent in custody between 17 June and 7 November 2019 (144 days) on charges that were ultimately dismissed.  Mr Palmer wrongly asserted that he was also entitled to credit for the period between 15 October and 22 November 2021 when he was not in custody during that period.
[27]	As the subject offences involving dishonesty were of the same broad nature as the offending for which Mr Palmer was dealt with on 30 September 2020 and the subject offences were committed around the same time as that offending in respect of which Mr Palmer was sentenced to the period of 171 days for which he had been in presentence custody between 2 March and 19 August 2020, that sentence also had totality implications for the sentencing of Mr Palmer for the subject offences.
[28]	The sentencing judge referred to Mr Palmer’s PTSD but the evidence of the link between his PTSD and his abuse of alcohol and his criminal offending gave greater scope for moderating the weight given, at the least, to general deterrence as a factor in the sentencing: R v Yarwood (2011) 220 A Crim R 497 at [23]-[26].  It was also open on the evidence before this Court to find that the pattern of Mr Palmer’s offending and his inability to comply with the bail orders from the commission of the subject offences until he was sentenced by the sentencing judge were consistent with his untreated PTSD, abuse of alcohol and ASD.
[29]	The prosecutor who had appeared before the sentencing judge had submitted that a global sentence of three to four years should be imposed on Mr Palmer with parole release or eligibility after one-third of the sentence had been served in actual custody and that a declaration for presentence custody served on account of the offences could be made for 274 days.  The sentencing judge’s approach of selecting a head sentence of three years and not making any declaration of presentence custody favourable to Mr Palmer did not give sufficient moderation to the sentence for the link between Mr Palmer’s PTSD (and his resulting abuse of alcohol) that was shown on the evidence to be a cause of his criminal offending.
[30]	The sentencing judge and the prosecutor who appeared before the sentencing judge were mindful of the issues of totality but there was also much more scope for giving Mr Palmer credit for periods he had spent in custody prior to the subject offences which had never counted towards any sentence and the disadvantage that he suffered each time he was sentenced to presentence custody that was a greater punishment of the offending for which he was being sentenced than the offending may otherwise have attracted but for the length of time he had been in presentence custody.  Care must be taken when considering an offender’s criminal history on the issue of totality where the offender has been sentenced on numerous occasions for minor offences where the aggregate sentences are greater than the appropriate punishment for the total criminality for the aggregate offending.
[31]	The amendment made to s 159A(1) of the Act had the purpose of enhancing judicial discretion by allowing increased flexibility in sentencing.  It is possible for the Court to make a presentence custody declaration that is beneficial to a prisoner even where the time held on remand in presentence custody coincided with the prisoner serving a sentence for other offending: R v Wilson (2022) 10 QR 88 at [18] approving the decision in R v Whitely (2021) 8 QR 283 at [13]-[18].  See also the Explanatory Note for the Bill that was enacted as the Justice and Other Legislation Amendment Act 2020 (Qld) at p 5 and p 30.
[32]	In resentencing Mr Palmer, the Court considered that the most expedient way of dealing with the presentence custody in the circumstances of Mr Palmer’s complicated criminal history was to accept that a declaration in Mr Palmer’s favour should be made for the 570 days that he had spent in presentence custody on remand for the subject offences that was identified in the presentence custody certificate before the sentencing judge.  To the extent that some part of that 570 days was attributable to Mr Palmer’s custody for other sentences, that was matched by allowances that should be made in his favour for periods in custody which he had previously served and had not been credited against any sentence and taking into account that the sentence of 171 days served between 2 March and 19 August 2020 which had been imposed for relatively minor offending committed around the same time as the subject offences and during which he had also been on remand for the subject offences.  In order to ensure that Mr Palmer had some supervision on being released into the community, the Court decided to substitute a probation order for 12 months in lieu of the sentence of six months’ imprisonment imposed for count 3 on the second indictment.
Orders
[33]	The above reasons explain why the following orders were made at the conclusion of the hearing on 9 February 2023.  (The typographical error in paragraph 4 of the orders has been corrected in the following orders.)
1.	Application for leave to appeal against sentence granted.
2.	Appeal against sentence allowed.
3.	Set aside the sentence of six months’ imprisonment for count 3 on indictment no 693/22 and in lieu order that the appellant be released under the supervision of an authorised Corrective Services officer for a period of 12 months and that he must comply with the requirements set out in s 93(1) of the Penalties and Sentences Act 1992 (Qld) and report within two business days of release from custody to an authorised Corrective Services officer at Brisbane (Spring Hill) and a conviction is recorded.
4.	Set aside the fixing of a parole release date on 27 June 2022 [and] the sentencing judge’s decision not to make a presentence custody declaration.
5.	Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it is declared that the dates between which the appellant was held in presentence custody were:
a.	between 2 March 2020 and 21 December 2020 (295 days);
b.	between 17 March 2021 and 9 April 2021 (24 days);
c.	between 13 June 2021 and 15 October 2021 (125 days); and
d.	between 16 February 2022 and 21 June 2022 (126 days)
and it is declared that 570 days, namely between 2 March 2020 and 21 December 2020, between 17 March 2021 and 9 April 2021, between 13 June 2021 and 15 October 2021 and between 16 February 2022 and 21 June 2022 is taken to be imprisonment already served under the sentences.
6.	In respect of each of the sentences of imprisonment imposed by the sentencing judge on 22 June 2022 (other than the sentence for count 3 on indictment no 693/22 which has been varied by these orders) order that the term of imprisonment be suspended after serving a period of 570 days’ imprisonment and the appellant must not commit another offence punishable by imprisonment within a period of three years if to avoid being dealt with for the suspended term of imprisonment.