DISTRICT COURT OF QUEENSLAND

CITATION:	Garcia v Commissioner of Police [2025] QDC 8 	
PARTIES:	MELCHOR RESTAURO GARCIA
(appellant)
v
COMMISSIONER OF POLICE 
(respondent)	
FILE NO/S:	7 of 2025	
DIVISION:	Appellate	
PROCEEDING:	Appeal pursuant to s 222 Justices Act 1886 (Qld)	
ORIGINATING COURT:	Magistrates Court at Cairns 	
DELIVERED ON:	Orders pronounced 6 February 2025.
Reasons published 17 February 2025. 	
DELIVERED AT:	Cairns	
HEARING DATE:	6 February 2025	
JUDGE:	Fantin DCJ	
ORDER:	1.	Appeal dismissed.	
CATCHWORDS:	CRIMINAL LAW – APPEAL –– APPEAL AGAINST SENTENCE – where the appellant was convicted on plea of guilty of one count of contravening an order about information necessary to access information stored electronically under s 205A of the Criminal Code 1899 (Qld) – where the appellant was sentenced to nine months imprisonment, suspended after serving three months, for an operational period of 15 months – whether the Magistrate erred in law by failing to have regard to s 9(2)(a) of the Penalties and Sentences Act 1992 (Qld) – whether the sentence was manifestly excessive because of the requirement to serve a period of actual custody 	
	Criminal Code 1899 (Qld), s 205A
Justices Act 1886 (Qld), s 222, s 223, s 225(1) 
Penalties and Sentences Act 1992 (Qld), s 9
	
	Barbaro v The Queen (2014) 253 CLR 58
Calvet v The Commissioner of Police [2020] QDC 161
Chakka v Queensland Police Service [2024] QCA 213 
Hili v The Queen (2010) 242 CLR 520
House v The King (1936) 55 CLR 499 
Kentwell v The Queen (2014) 252 CLR 601 
Lovell v Lovell (1950) 81 CLR 513
R v Dwyer [2008] QCA 117
R v Hodges [2023] QCA 126
R v Ikin [2007] QCA 224 
R v Lawley [2007] QCA 243 
R v MCT [2018] QCA 189
R v O’Malley [2019] QCA 130
R v Smith [2019] QCA 179
R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116
R v Wilson [2023] QCA 132
Ross v Commissioner of Police [2018] QDC 99
Ross v Commissioner of Police (2019) 278 A Crim R 159
Wilson v Commissioner of Police [2023] QDC 51	
COUNSEL	M Longhurst for the appellant
T Grasso for the respondent	
SOLICITORS	Osbourne Butler Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent.	
Nature of appeal and grounds 
[1]	On 17 January 2025 in the Magistrates Court at Cairns the appellant pleaded guilty to, and was convicted of, an offence under s 205A of the Criminal Code 1899 (Qld) (‘the Code’) (‘s 205A offence’) of contravening, without reasonable excuse, an order made under the Police Powers and Responsibilities Act 2000 (Qld) (‘PPRA’) s 154(1) about information necessary to access information stored electronically. 
[2]	He was sentenced to nine months imprisonment, suspended after serving three months imprisonment, for an operational period of 15 months, and his mobile phone was forfeited.
[3]	The appellant appeals against his sentence on two grounds:
1.	the sentence of imprisonment was manifestly excessive by virtue of the requirement to serve a period of actual custody; and
2.	the Magistrate erred in law in failing to consider, or give sufficient weight to, s 9(2)(a) Penalties and Sentences Act 1992 (Qld) (‘PSA’) (during the hearing, leave was granted to amend the notice of appeal to add this ground).
[4]	The appellant applied for bail pending appeal. The hearing of the appeal was expedited so that the appeal could be considered on its merits, rather than determining the application for appeal bail. 
Statutory framework and principles
[5]	An appeal pursuant to s 222 of the Justices Act 1886 (Qld) (‘JA’) is by way of rehearing on the original evidence given before the Magistrate, subject to any new evidence adduced by leave: s 223 JA.
[6]	On the hearing of the appeal, the judge may confirm, set aside, or vary the appealed order, or make any other order in the matter the judge considers just: s 225(1) JA.  
[7]	Section 222(2)(c) permits appellate intervention where an error in the exercise of the discretion of the kind recognised by House v The King is established, and the error has resulted in a sentence which is excessive or inadequate. This requires an appellant to demonstrate not only that the sentencing discretion has miscarried due to error but also that the resulting sentence is excessive. Where specific error is established, an appellant will only succeed if they satisfy the appellate judge that absent the error a lesser sentence would have been, or should have been, imposed. 
[8]	The ground of appeal that a sentence is “manifestly inadequate” or “manifestly excessive” is the residuary or inferred category of error identified in House v The King, which is premised on the result being unreasonable or plainly unjust. ‘There may be cases where the sentence is so "unreasonable or plainly unjust" in the circumstances as to give rise to an inference that the discretion has miscarried. It is this idea which informs the familiar ground of appeal that a sentence is manifestly excessive’. 
[9]	In cases of complaints of manifest excess, an appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences that could have been imposed upon the appellant for this offence. It is not a sufficient basis of intervention that the appellate court may have imposed a different sentence in the exercise of the sentencing discretion. An appellate Court will not interfere unless the error in the exercise of discretion below is clear. 
[10]	It is well established that comparable cases do not mark the outer bounds of permissible sentencing discretion with numerical precision. To succeed on an application based on manifest excess, it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences imposed in other matters. In R v MCT, Morrison JA, with whom Sofronoff P and Philippides JA agreed, observed:
Consistently with the accepted understanding that there is no single correct sentence, judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
[11]	The appellant seeks to persuade this Court either that a specific error has been made – in failing to consider and apply s 9(2)(a) of the PSA – or, otherwise, that error should be inferred because the outcome is unjust or unreasonable. 
Circumstances of offence 
[12]	On 22 November 2024 at 7:15am, police from the Major and Organised Crime Squad executed a search warrant at the appellant’s address in Cairns. The warrant was issued by a Magistrate and included an order for the appellant to provide access to his digital devices when required by a police officer. Police detained the appellant, warned him of his right to silence, and right to contact a friend, relative or lawyer. Police conducted a search and located a mobile telephone in the appellant’s bedroom. It required a PIN code to gain access to the device. Police explained to the appellant that the warrant contained an order requiring him to provide access to his digital device. The appellant refused to provide police with the PIN code to his mobile phone. Police warned the appellant that failing to provide access to his mobile phone would be an offence. The appellant continued to refuse to provide access. Police arrested the appellant and took him to the watch-house where he was charged with the s 205A offence. He was not charged with any other criminal conduct arising from execution of the warrant. Police seized the mobile phone but were unable to gain access to the device.
Appellant’s antecedents
[13]	The appellant was a mature man with a concerning criminal history. He was 40 years old at the time of offending and 41 years at sentence. In 2015, he was sentenced in the Magistrates Court for breach of bail, fined $300 and no conviction was recorded. In 2017, he was sentenced in the Supreme Court at Cairns after pleading guilty to the following offences:
1.	torture – seven years imprisonment with a Serious Violent Offence Declaration;
2.	kidnapping – four years imprisonment with a Serious Violent Offence Declaration;
3.	kidnapping – two years and six months imprisonment with a Serious Violent Offence Declaration;
4.	possessing dangerous drugs, schedule 1, drug quantity exceeding schedule 3 but less than schedule 4 – 18 months imprisonment;
5.	unlawful possession of weapons – three months imprisonment;
6.	discharge weapon in a public place – three months imprisonment;
7.	possessing dangerous drugs – two months imprisonment; and
8.	approximately 17 summary charges for weapons, drugs, and breach of bail offences (five) which were transmitted to the court.
The sentences were ordered to be served concurrently. The sentencing remarks were not before the court. 
[14]	In submissions in the Magistrates Court, the police prosecutor summarised the facts of the above offending as follows. In July 2015, following a targeted search, the appellant was found in possession of cocaine, MDMA, firearms and a silencer. In October 2015, while on bail, he was identified being in possession of a firearm and videos were located of him discharging the firearm in a public place. In February 2016, he was involved in a kidnapping where the victim was taken to a rural property, placed in a shipping container, bound by rope and with a noose around his neck, for a lengthy period. During this time, the appellant stabbed the victim with a knife and the victim was subjected to numerous assaults. He was moved several times, culminating in being driven to a location, bound to a tree with a noose around his neck, and force-fed pills. The appellant and co-offender left the victim there. He managed to free himself and raise the alarm. He suffered rope and ligature burns to his neck, dehydration, puncture wounds, lacerations, abrasions and tenderness.
[15]	In 2018 the appellant’s application to the Court of Appeal for leave to appeal against his sentence on the torture and kidnapping offences was refused. 
[16]	In 2021, the appellant was sentenced in the Magistrates Court at Innisfail for dealing with a prohibited thing (a mobile telephone) and contravening an order about device information from digital device under s 205A of the Code. Those offences were committed while serving terms of imprisonment in custody. Despite the objectively grave nature of a s 205A offence and the aggravating feature of being committed in custody, the Magistrate imposed only a fine of $2,000 for both offences and recorded convictions. The sentencing remarks were not before the court. 
[17]	In 2022 the appellant was released on parole. In 2023 the head sentence expired. The subject offence was committed in 2024.
[18]	The appellant entered an early plea of guilty to the subject offence. He had not served any time in presentence custody.  
No error of law demonstrated 
[19]	The appellant contends that the Magistrate, in imposing an actual period of imprisonment, failed to adequately consider and apply s 9(2)(a) of the PSA; and that the failure to give adequate reasons for not imposing a community-based order is an error requiring the court to exercise the sentencing discretion afresh. 
[20]	Section 9(2)(a) provides that in sentencing an offender, a court must have regard to principles that a sentence of imprisonment should only be imposed as a last resort, and a sentence that allows the offender to stay in the community is preferable.
[21]	It is correct that in his sentencing remarks the Magistrate did not expressly refer to s 9(2)(a). That is unsurprising, given that no party before him submitted for a sentence other than imprisonment.
[22]	The prosecutor submitted for a sentence of 12 to 18 months imprisonment, with a period to be served in actual custody. He referred the Magistrate to the statements of principle in Ross v Commissioner of Police. He emphasised that it was a targeted search with a warrant sought by the Major and Organised Crime Squad and that the appellant’s actions had prevented further investigations.
[23]	The appellant’s solicitor sought to distinguish Ross, characterising the offending in it as more serious, emphasising Ross’s persistent refusal to provide the access codes to some devices but not others, and the number of devices involved (six). He referred the Magistrate to Calvet v The Commissioner of Police and also sought to distinguish it as more serious offending. 
[24]	The appellant’s solicitor emphasised the appellant’s very early plea of guilty. He submitted that there were reasons for the appellant’s refusal to provide access, albeit not such as would constitute a defence. He referred to the appellant informing a police officer during the search that there were photographs of his son and his partner’s children on the device, and going into some detail about the intimate or sensitive nature of what was on his phone. He submitted that the appellant decided not to cooperate because, in effect, he felt harassed and aggrieved by the presence of several police officers in his and his mother’s home early in the morning, causing his son to be distressed, and by what he perceived as the unwarranted attention he was receiving, in circumstances where he had “left the criminal world behind”. He emphasised that nothing of interest was found during the search and that the appellant was not charged with any other offences arising from the search.
[25]	The appellant’s solicitor submitted that the appellant was in full time employment, living with his mother, and caring for his son.
[26]	The appellant’s solicitor conceded that the authorities supported the imposition of a term of imprisonment but contended for a sentence which did not require the appellant to serve any time in actual custody. The concession that a term of imprisonment was open, was appropriately made. The appellant’s solicitor submitted for nine months imprisonment, wholly suspended. He made extensive submissions in mitigation seeking to persuade the Magistrate that the appellant should not be required to serve any period in actual custody.  
[27]	After hearing submissions, the Magistrate adjourned for 45 minutes, in which it can be inferred he considered the matter, before proceeding to sentence.
[28]	The Magistrate’s sentencing remarks were relatively detailed and considered. He commenced by stating that an actual custodial term was being imposed and he explained the reasons for that. His Honour referred to the mitigating features including the early plea of guilty, which he said he took into account. The Magistrate considered the two authorities to which he was referred, Ross and Calvet. He noted the similar and distinguishing features. His Honour accurately distinguished the factual circumstances in Ross and Calvet including that the appellant’s charge related to only one device; that the appellant was not also charged with other offences; and that the appellant was not given an opportunity on a later date to provide the code. 
[29]	In explaining his reasons for imposing a custodial term, His Honour referred to the need for deterrence and the serious nature of the offence. His Honour, correctly, placed weight on the appellant, unlike Ross and Calvet, having a serious criminal history, including a conviction for a like offence, and not being a youthful offender like Calvet. 
[30]	Section 9(2)(a) was not mentioned in the parties’ submissions or the Magistrate’s sentencing remarks. But on a fair reading of the sentencing remarks as a whole, it is clear that the Magistrate did have regard to whether imprisonment was the appropriate penalty and whether a sentence served in the community was appropriate. In the end, he was not persuaded that the appellant should not serve any time in actual custody. He adopted an orthodox approach of reflecting the mitigating factors, including the early plea of guilty, by releasing the appellant after he had served one third of the term of imprisonment in custody. The Magistrate accepted the appellant’s solicitor’s submission that the term of imprisonment should be only nine months, rather than the longer term submitted for by the prosecution. Despite the appellant’s serious and relevant criminal history, the Magistrate also accepted the submission that the appellant should receive the benefit of a suspended sentence rather than release under the supervision of the parole authorities. The latter would also have been open.  
[31]	In the particular context of the case and the sentencing hearing, it was unnecessary for the Magistrate in his reasons to expressly refer to s 9(2)(a).
[32]	No error of law has been demonstrated. This ground of appeal fails.
Sentence not manifestly excessive
[33]	The Court of Appeal in Ross referred to the Explanatory Notes for the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) which describes s 205A, amongst other relevant provisions, as a ‘major investigative tool to combat serious criminal activity’ introduced ‘in response to the proliferation of child exploitation material … the increased use of technology to promote and distribute offending material as well as to conceal offending’. The Court said that the legislature considered that the maximum penalty of five years imprisonment for an offence under the then new s 205A was ‘justified to ensure a balance between the penalty for non-compliance with an order of the court and the maximum penalty for offending behaviour … which may be concealed by technology.’
[34]	In statements often cited, the Court in Ross said:
[43] The gravamen of a s 205A Criminal Code offence lies in the fact that it stymies an investigation and potentially conceals more serious offending, and has the potential to deflect a police investigation into potentially very serious offences. 
[44] It is not always possible for a sentencing judge to determine all of the circumstances surrounding an offence. Prosecuting authorities and a sentencing judge will often have the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. This is especially so when the gravamen of the offence is the act of refusing to provide access information for a device in breach of a court order. 
…
[49] In this case, the level of criminality was unknown to the court because the applicant refused to provide the access information and no submissions were made on his behalf about the reasons why he refused to do so. The learned magistrate is not expected, in these circumstances, to embark on a fact-finding investigation to determine the level of criminality hidden by the applicant’s refusal to comply with the access order. 
[50] The learned District Court judge was correct to find that the criminality of this offence was simply that the applicant was hiding something and that, as with the offence generally, there was the potential for it to be a serious offence. No further specific finding could be made in the absence of submissions from either the police prosecutor or the applicant’s solicitor.
[51] It was not necessary for the learned magistrate to have gone one step further and find, as a relevant fact, what the potential criminality was and what a court could rationally conclude was the level of seriousness of the offence(s), or potential offence(s), being withheld.
[references omitted]
[35]	Section 154 of the PPRA allows Magistrates and Judges to make an access order, thereby permitting police to require the provision of a PIN or other access code, and making the specified person liable to conviction of an offence if not provided. 
[36]	Before considering the cases referred to, it is useful to bear in mind statements of principle about the use of comparable cases and a sentencing “range”.
[37]	The “range” ‘is no more than information about sentences that have been imposed in comparable (but not identical) cases.’ It is ‘the historical fact that there has been a general pattern of sentencing over a particular period.’ Bradley J, with whom Gotterson and McMurdo JJA agreed, summarised the position in R v O’Malley: 
Past decisions in other cases are not determinative of the sentence in this case and they do not set a “range” of permissible sentences. However, they may assist in understanding how the various relevant factors should be treated in deciding the sentence.
[references omitted]
[38]	Similarly, Keane JA in R v Dwyer warned against attempting to apply mathematical precision in sentencing: 
An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.
[39]	The question is not what sentence would have been imposed by another judicial officer, but whether the sentence imposed of nine months imprisonment with a requirement to serve three months in actual custody made the sentence “unreasonable or plainly unjust”.
[40]	In that context, I turn to consider the authorities referred to as comparable. 
[41]	Ross was a 34 year old man who failed to provide access codes to six mobile devices seized during execution of a search warrant that also located drug related items and several computers. He was sentenced to 12 months imprisonment, wholly suspended for an operational period of three years, which was undisturbed on appeal. Ross was younger than the appellant and pleaded guilty at an early time, but his offending was more serious. He refused to provide access passcodes to six devices in breach of an order. All devices were secure in the sense that police could not access them without passcodes. The Court found that the nature and circumstances of the offence were serious, including because Ross ‘made a deliberate and careful choice not to provide the passcodes to the particular devices. He provided passcodes to other computers and devices that were seized by police but chose not to provide the access codes for the six devices the subject of the offence.’ He was also convicted of four other offences at the same time, including possession of drugs (multiple vials of growth hormone) and explosives offences (fireworks). Ross had a more limited criminal history than the appellant. It contained two entries: one for contravening a direction or requirement in 2012; and fraud in 2017. For each he received fines with no conviction recorded. He was sentenced for the fraud offence only two months before he committed the offences the subject of the appeal. Ross made admissions to possessing the drugs and fireworks. The District Court Judge, on appeal, found that his plea of guilty was not a sign of genuine remorse. In mitigation, Ross entered an early plea, was married with children, self-employed, provided a favourable reference, and had suffered a degree of extra-curial punishment. In contrast, the appellant here was older, had a much more serious criminal history, and a recent conviction for the same offence, committed while in custody.
[42]	Calvet was a decision of the District Court on an unsuccessful appeal against sentence on the basis of manifest excess. The 19 year old applicant failed to provide the access code to a mobile phone seized during an execution of a search warrant that located a large amount of cannabis and other drug related items. He was on bail for the drug offences at the time he committed the offence under s 205A. For the s 205A offence, he was sentenced to six months imprisonment, wholly suspended for an operational period of 18 months. Calvet’s representative emphasised his youth, voluntary attendance at the police station, that he had ‘almost no history’, was in full employment, had prospects of an apprenticeship, was remorseful, and was a low risk of reoffending. In dismissing the appeal, Williamson KC DCJ found that: a term of imprisonment was open; the term imposed was moderated in a significant way to reflect the points of difference with Ross; Calvet had committed the s 205A offence while on bail; and the mitigating features had been reflected in a sentence which was wholly suspended. He also said that a salutary deterrent penalty will be imposed for contraventions of s 205A, and that such a sentence is called for to ensure that orders of the kind to which the offence relates do not become a ‘toothless paper tiger’.
[43]	In the 2023 appeal of Wilson v Commissioner of Police, I reviewed a number of decisions involving s 205A and several sentencing remarks of the Supreme Court and the District Court. I rely upon that analysis. I observed that in all of those matters, a sentence of imprisonment was imposed for a s 205A offence. In that appeal, the prosecutor was unable to locate any decisions in which a community based order had been imposed. In none of the decisions did the sentence exceed 12 months imprisonment.  
[44]	Many of those cases involved mature defendants with relevant criminal histories, who were also convicted of other offences detected on execution of the same search warrant. Some involved more than one device to which access was refused. Some offended while on parole, on bail, or in breach of court orders. Some were ordered to serve their term of imprisonment concurrently with other, more serious, offences. Some were ordered to serve their term of imprisonment cumulatively, and the sentence was moderated for totality. The highest penalty (actual or nominal) was 12 months imprisonment. The Court of Appeal in Ross also referred to sentences imposed by the Western Australian Court of Appeal under the equivalent provision, all of which involved terms of imprisonment.  
[45]	More recently, in the unrelated matter of R v Wilson, the Court of Appeal affirmed the appropriateness of a six month term of imprisonment, moderated for totality, to be served cumulatively on other terms of imprisonment the offender was liable to serve, for a s 205A offence committed by a mature, drug dependant offender together who also committed vehicle, weapons, and drug offences while on parole. 
[46]	Having considered all of those decisions, it cannot be said that the circumstances of this offence and the appellant’s antecedents, including his criminal history, mandated a term of imprisonment which did not require him to serve any time in actual custody.
[47]	Mr Longhurst emphasised the appellant’s early plea of guilty and the appellant’s reasons for refusing to provide access to the device. He submitted that, together, those features should have been reflected in no requirement to serve actual custody. He conceded that it was open to impose a parole release date rather than a suspended sentence.  
[48]	The objective gravity of the offending was such that a sentence of imprisonment was appropriate to reflect the purposes of sentence of just punishment, general deterrence and denunciation. 
[49]	The Magistrate was correct to find that the appellant’s offending was less serious than in Ross. But that does not mean the sentence he imposed was manifestly excessive. The Magistrate reflected the lower objective gravity of the appellant’s offence compared to Ross’s by imposing nine months imprisonment rather than the 12 months in Ross.
[50]	The Magistrate emphasised the need for “deterrence in penalty”. I accept the respondent’s submission that this was a reference both to the statement of general principle in Ross about the importance of general deterrence in sentencing for this offence, as well as the need for personal deterrence because of the appellant’s criminal history.
[51]	The appellant was a mature man with a serious criminal history for drug, firearms, and violent offences, and for defying court orders, but he also had a relevant, recent conviction for the same offence, committed while in custody. The previous convictions were an aggravating feature on sentence. Personal deterrence was therefore also a significant consideration.
[52]	Although no other offences were charged as a result of execution of the search warrant, it could not be said that his offending was out of character. 
[53]	Nor could it be said that the appellant did not properly understand the serious consequences to him of refusing to provide access to the device. The police had explained that to him, including the maximum penalty. During the three hour search of his home, the appellant had plenty of time to reconsider his decision to refuse to provide access, but he chose not to do so. 
[54]	There is no reason to doubt that the motives proffered by the appellant’s solicitor for the refusal to give access were matters taken into account by the Magistrate in imposing sentence. 
[55]	No error has been demonstrated. It was well within the sound exercise of the Magistrate’s sentencing discretion to impose a sentence of imprisonment which required the appellant to serve a period of actual custody. 
[56]	The appellant has not demonstrated that the sentence is manifestly excessive. This ground of appeal fails.
Conclusion and orders
[57]	The appeal must be dismissed.