DISTRICT COURT OF QUEENSLAND

CITATION:	Aloiai v The Commissioner of Police [2025] QDC 27	
PARTIES:	SETU JOSEPH ALOIAI
(appellant)
v
THE COMMISSIONER OF POLICE
(respondent)	
FILE NO:	3628/24	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Brisbane Magistrates Court 	
DELIVERED EX TEMPORE ON:	
19 February 2025	
DELIVERED AT:	Brisbane District Court 	
HEARING DATE:	19 February 2025	
JUDGE:	Sheridan DCJ 	
ORDER:	1.	Appeal is allowed.	
2.	The sentence of the Magistrate is set aside.
3.	The new sentence is as follows:
a.	for the count of entering premises and commit indictable offence on 20 June 2021, the appellant be imprisoned for 12 months;
b.	for the count of entering premises and commit indictable offence on 30 June 2021, the appellant be imprisoned for 6 months;
c.	for each of the counts of possessing dangerous drugs on MAG-00064719/23(8), the appellant be imprisoned for 1 month;
d.	for the count of possessing dangerous drugs on MAG-00199360/23(0), the appellant be imprisoned for 1 month; 
e.	for each of the counts of possessing utensils or pipes on MAG-00064719/23(8) and possessing a knife on MAG-00199360/23(0), the appellant is convicted and not further punished;
f.	for the count of failure to appear on MAG-00174054/24(0) on 16 October 2024, the appellant be imprisoned for 3 months; and
g.	for each of the counts of failure to appear on MAG-00199360/23(0), MAG-00021339/24(5), MAG-00076668/24(8), MAG-00105930/24(1) and MAG-00156445/24(0), the appellant is convicted and not further punished.
h.	the terms of imprisonment are concurrent except the term of imprisonment of 3 months imposed on the failure to appear on MAG-00174054/24(0) is to be cumulative on the other terms of imprisonment.
i.	the parole release date is fixed at 19 February 2025, the day of the appeal hearing.	
CATCHWORDS:

LEGISLATION:

CASES:	MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – where the appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld) – where appellant charged with 14 offences – where the practical effect of the sentence imposed by the Magistrate was 23 months imprisonment– where the parole release date was fixed at 6 months after the date of sentence – whether sentence manifestly excessive 
Justices Act 1886 (Qld), s 222
Penalties and Sentences Act 1992 (Qld), s 12, s 93

Allen v Commissioner of Police [2019] QDC 34
Ferrall v Commissioner of Police [2018] QDC 100
Hili v The Queen (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
Jones v Queensland Police Service [2022] QDC 281
Lowe v The Queen (1984) 154 CLR 606
R v Lemass (1981) 5 A Crim R 230
R v McIntosh [1923] St R Qd 278
R v Morse (1979) 23 SASR 98
R v Taylor [2007] QCA 214
Wong v The Queen (2001) 207 CLR 584
WPT v QPS [2021] QDC 250
	
SOLICITOR:

COUNSEL:	A Palombo, solicitor from Aboriginal and Torres Strait Islander Legal Service for the appellant

M Hickey, legal officer from the Office of the Director of Public Prosecutions Queensland for the respondent

C Bernardin, counsel for the appellant	
Introduction
[1]	This was an appeal against sentence. When the matter came before me on 19 February 2025, I allowed the appeal, resentenced the appellant and set the appellant’s parole release date as the day of the appeal hearing. These are my reasons.
Background
[2]	On 6 December 2024, the appellant pleaded guilty and was sentenced in the Magistrates Court of Brisbane to a total of 14 charges: two offences of entering premises to commit an indictable offence on 20 June 2021 and 30 June 2021, one offence of possessing a knife in a public place on 17 November 2023, three drug related offences of possessing dangerous drugs on 10 April 2023 and 17 November 2023, one offence of possessing property used in connection with a drug related offence on 10 April 2023, six offences of failing to appear and one offence of contravention of a direction.
[3]	The facts of the offending were contained in a nine-page sentencing schedule and were fully admitted by the appellant.
[4]	The most serious offending involved two counts of break and enter. The first in time occurred on 20 June 2021 and involved the appellant entering school premises between midnight and 1am and by breaking a window with a screwdriver, where the appellant then entered the IT department of the school and stole five computers and then entered the locker room of the school and stole bags and personal belongings of students.
[5]	The second in time occurred 10 days later on 30 June 2021 and involved the appellant entering the parking garage of a residential apartment building between the hours of 7.30am and 9am. The appellant smashed the front passenger side window of a Mazda car and accessed the vehicle. The appellant stole from the vehicle a pair of sunglasses, $70 cash and a purse containing bank cards and personal cards.
[6]	CCTV footage from both the school and inside the parking garage clearly identified the appellant.
[7]	The remaining of the offending for which the appellant was sentenced by the Magistrate occurred on 10 April and 17 November 2023 and involved the appellant being found in possession of drugs and on the second occasion also a knife.
[8]	There were also failures by the appellant to appear in breach of bail undertakings given. The first of that offending occurred on 27 April 2023 with the appellant having entered a bail undertaking on 10 April 2023. The further failures to appear occurred on 1 December 2023, 20 February 2024, 29 May 2024, 9 July 2024 and 16 October 2024 with there also being a contravention of a direction on 7 May 2024.
[9]	Prior to sentence the appellant had served 43 days of presentence custody, which was declared.  
Sentence
[10]	The sentence imposed was the imposition of a head sentence of 18 months imprisonment for the most serious of the offences of entering premises (entering the school) with lesser concurrent terms for the other offending, namely 12 months imprisonment for the second entering offence and three months imprisonment for each of the drug possession offences. For the possession of property used in connection with drug offending, possession of a knife and failure to obey a direction he was convicted and not further punished. The appellant was convicted but not further punished for the first five days of failure to appear. He was convicted and sentenced to five months imprisonment for the fifth failure to appear. The last sentence for failure to appear was to be served cumulatively on the 18 months imprisonment. The practical effect was a sentence of 23 months imprisonment.
[11]	The parole release date was set at 23 April 2025, which saw the appellant to spend six months in custody. 
[12]	By the time the appeal came on for hearing, the appellant had served close to four of the six month period of imprisonment that the Magistrate had ordered. 
Mode of Appeal 
[13]	This appeal was brought pursuant to s 222 of the Justices Act 1886 (Qld). The notice of appeal was filed on 20 December 2024. The sole ground of appeal was that the sentence was manifestly excessive in all the circumstances.
[14]	An appeal under s 222 is by way of a rehearing on the original evidence. The rehearing requires the court to conduct a real review of the evidence and make up its own mind about the case.  
[15]	To succeed, the appellant must establish some legal, factual or discretionary error.  Given the grounds of appeal, the appellant must show the sentence to be “unreasonable or plainly unjust.” 
[16]	A sentence has been described as excessive if it is “beyond the acceptable scope of judicial discretion” or “so outside the appropriate range as to demonstrate inconsistency and unfairness.”
[17]	The concept of a sentence being manifestly excessive was considered in Hili v The Queen where the Court in referring to the plurality in Wong v The Queen stated:
“[A]ppellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases.’”
[18]	Rather, it was said, again referring to the plurality in Wong: 
“[I]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”
Appeal against sentence 
[19]	The written submissions for the appellant focused on the sentence imposed being disproportionate to the gravity of the offending and the Magistrate having failed to pay due regard to the circumstances of the appellant. 
[20]	It was submitted that a sentence of 18 months for the break and enter of the school was excessive in circumstances where:
(a)	The offending was committed when no students, teachers or people were present in the school grounds;
(b)	The offending did not involve the taking of items of significant value;
(c)	The appellant had stolen the items for his own use; and
(d)	Although the entry was by break there was no allegation of extensive property damage.
[21]	It was submitted that the Magistrate needed to have regard to totality as the appellant had already spent six months in custody for like offences, namely the two counts of break and enter which had been committed around the same time as the charges before the Magistrate. 
[22]	Further, it was submitted that the sentence failed to take proper account of the appellant’s antecedence, particularly his job loss through COVID-19, his consequent drug use and his troubling upbringing.
[23]	It was submitted on behalf of the appellant that a head sentence of 12 months would have been appropriate.
[24]	In the written submissions on behalf of the respondent it was conceded that the imposition of a cumulative sentence of five months for the failure to appear on top of the 18 month sentence for the entering offence rendered the sentence imposed by the Magistrate manifestly excessive. It was submitted that an appropriate sentence to reflect the totality of the offences sat closer to 18 months imprisonment.
[25]	In support of the submissions on behalf of the appellant, I was referred to single judge decisions in this Court, namely the decisions of Jones v Queensland Police Service, Ferrall v Commissioner of Police, and Allen v Commissioner of Police. On behalf of the respondent, I was referred to the case of R v Taylor.
[26]	In the circumstances, I agree that the sentencing discretion miscarried, the sentence imposed was excessive and the appeal is allowed.
Re-sentence
[27]	In those circumstances, this Court must re-sentence the appellant.
[28]	The appellant submits, as was submitted before the Magistrate, that the appropriate sentence to be imposed is a head sentence of 12 months imprisonment for the offence committed on 20 June 2021 of entering the school premises and commit an indictable offence of the stealing of five computers and some school bags and personal belongings and a lesser concurrent term of six months for the second offence of break and enter and a cumulative sentence of 3 months imprisonment for the failures to appear.
[29]	It was not submitted that the sentence imposed for the possession offences and other minor offences should be disturbed. 
[30]	The respondent considered that the sentence of breaking and entering should be reduced from 18 months to 13 months and the 5 month sentence imposed for a failure to appear should not be disturbed.
[31]	The respondent submitted that as the appellant had served close to four months of the six months of time in custody, as imposed by the Magistrate, it would be open for the court to find that releasing the appellant at slightly less than one third of the overall period of imprisonment was an appropriate reflection of his antecedents and remorse through his plea of guilty.  
[32]	Having regard to all the circumstances, including the authorities to which I was referred, the sentence I imposed was as follows: 
1.	For the count of entering premises and commit indictable offence on 20 June 2021, I order that the appellant be imprisoned for 12 months;
2.	For the count of entering premises and commit indictable offence on 30 June 2021, I order that the appellant be imprisoned for 6 months;
3.	For each of the counts of possessing dangerous drugs on MAG-00064719/23(8), I order that the appellant be imprisoned for 1 month;
4.	For the count of possessing dangerous drugs on MAG-00199360/23(0), I order that the appellant be imprisoned for 1 month; 
5.	For each of the counts of possessing utensils or pipes on MAG-00064719/23(8) and possessing a knife on MAG-00199360/23(0), I order that the appellant is convicted and not further punished;
6.	For the count of failure to appear on MAG-00174054/24(0) on 16 October 2024, I order that the appellant be imprisoned for 3 months; and
7.	For each of the counts of failure to appear on MAG-00199360/23(0), MAG-00021339/24(5), MAG-00076668/24(8), MAG-00105930/24(1) and MAG-00156445/24(0), I order that the appellant is convicted and not further punished.
8.	I order that the terms of imprisonment are concurrent except the term of imprisonment of 3 months imposed on the failure to appear on MAG-00174054/24(0) is to be cumulative on the other terms of imprisonment.
9.	I set the appellant’s parole release date as the date on which I had re-sentenced, namely 19 February 2025.