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Case Note QLD

Buchanan v Queensland Police Service [2025] QDC 212

Murray Torcetti Lawyers are criminal defence lawyers who appear in Brisbane and Caboolture Courts. We write our own case notes from recent criminal decisions for internal purposes. However, unlike your annoying sibling, we don’t mind sharing.

Facts: The appellant appeared in the Cairns Magistrates Court on 28 October 2025 and pleaded guilty to two offences:

1. Public nuisance, under s 6 of the Summary Offences Act 2005 (Qld); and
2. Going armed so as to cause fear, under s 69 of the Criminal Code (Qld).

The charges arose from two incidents on 27 and 28 August 2025. On the first occasion, the appellant was involved in a street fight, requiring police and members of the public to intervene. The following day, he approached a group while armed with a knife, provoking fear among bystanders.

The Magistrate imposed terms of two months and three months imprisonment for each charge respectively, ordered to be served cumulatively on an existing two-year term of imprisonment due to expire on 5 March 2026. A parole eligibility date was set for 27 December 2025.

The appellant appealed pursuant to s 222 of the Justices Act 1886 (Qld) on three grounds:

1. That he was denied procedural fairness because he was not given notice of the intention to impose a cumulative sentence;
2. That the magistrate failed to adequately articulate reasons for making the sentence cumulative;
3. That the sentence imposed was manifestly excessive in all the circumstances.

Findings

1. Procedural Fairness

The District Court acknowledged that while a cumulative sentence was legally open under s 156 of the Penalties and Sentences Act 1992 (Qld), the appellant had not been advised that such a sentence was under consideration. The prosecutor did not submit that the sentence ought to be cumulative, and the issue was not raised during submissions. The first mention of cumulation occurred during sentencing remarks, depriving the appellant of a meaningful opportunity to respond.

While the appeal court did not make a final determination on this ground (in light of the resentence), it was critical of the lack of notice, reinforcing that procedural fairness includes advance warning of adverse sentencing proposals so they can be addressed properly.

2. Reasons for Cumulative Sentence:

Although the appellant submitted that the magistrate had failed to give reasons for the cumulative structure, the District Court found that the sentencing remarks, taken as a whole, were adequate. The magistrate referenced the appellant’s breach history, previous failures under community-based orders, seriousness of the knife offence, and the need for deterrence.

Importantly, the Magistrate applied the totality principle by reducing the notional six-month term for the more serious offence to three months, thereby moderating the impact of the cumulative sentence. While the reasons could have been more explicit, they were sufficient to identify the legal and factual bases for the decision.

3. Manifest Excess and Parole Eligibility:

The appeal ultimately succeeded on this ground. The court held that the sentence was excessive due to the disproportionate effect of the cumulative sentence and the parole eligibility date imposed. Despite having already served a lengthy period in custody (almost 21 months of a now 27-month unbroken sentence), the parole eligibility date was fixed late (27 December 2025), resulting in an excessive actual time in custody.

His Honour Judge Morzone KC emphasised that a person must not be subjected to a crushing or unjust total sentence. The parole framework was carefully analysed: because a prior court-ordered parole order had been cancelled under s 209 of the Corrective Services Act 2006 (Qld) during the unbroken period of imprisonment, the court was required to set a parole eligibility date under s 160B(2) of the Penalties and Sentences Act.

The sentencing structure, despite being legally permissible, produced unjust consequences when considering the time already served and the uncertain delay in actual release from custody due to parole application processes.

Resentence:

Judge Morzone set aside the sentence and resentenced the appellant to:

• Six months’ imprisonment on each charge;
• To be served concurrently with each other and with any other term;
• The sentences to be served by way of an Intensive Correction Order.
• Convictions recorded;
• The appellant was directed to report to the Cairns Parole and Probation Office within two business days of release.

This structure ensured the sentence remained one of imprisonment, satisfying denunciation and deterrence, while avoiding further actual custody. The court ruled out a wholly suspended sentence due to poor supervision history, serious nature of the offending, and the need for rehabilitative oversight.

Notes for Practice:

• Notice of cumulative sentencing must be clearly communicated to allow defence counsel the opportunity to address the issue. Unexpected cumulation may raise appealable fairness concerns.
• Sufficient reasons must be provided for sentencing choices, particularly when departing from concurrent sentencing norms. While not every factor must be detailed, reasons must be adequate to support appellate review and inform the parties.
• Understanding the parole framework under ss 160A–160F Penalties and Sentences Act and s 209 Corrective Services Act is critical. A prior court-ordered parole cancelled during an unbroken sentence may oblige the court to set a parole eligibility date rather than a release date.
• Intensive Correction Orders (ICOs) may offer a viable alternative to actual custody where suspended sentences are inappropriate, but rehabilitation and supervision remain necessary. Note that parole laws are not triggered by ICOs, avoiding cancellation.
• Totality principle remains fundamental. A sentence must reflect overall criminality without being oppressive, even where the individual sentence for each offence may be within range.

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