A sentencing judge who intends that none of an offender’s time in custody should count towards the new sentence might reasonably think there is nothing to declare. The Court of Appeal has confirmed the opposite. The pre-sentence custody declaration still has to be made, in open terms, even where its content can only be that no time counts and even where making it changes nothing.
In R v Johnson [2026] QCA 195 that omission was the only thing the applicant established across three grounds, and it won him nothing of substance. The Court granted leave, allowed the appeal, and varied the sentence by adding an order declaring that none of his 777 days in custody counted. His head sentence, his cumulation and his parole eligibility date were untouched.
What the Court decided
The applicant was sentenced in the District Court on 4 December 2025 for four offences committed on 19 October 2023, the most serious being armed robbery in company, for which he received four years. The others were unlawful use of a motor vehicle with intent to facilitate the commission of an indictable offence in company, breaking and entering premises and stealing, and entering premises with intent, at [3]. The sentences ran concurrently with each other but cumulatively on a sentence he was still serving, and parole eligibility was fixed at 20 February 2027. He had been released on parole in June 2023, about a year into a sentence of three years and six months, and committed these offences while on that parole. No declaration of any kind was made about his pre-sentence custody, although the sentencing judge clearly intended that none of it be taken as time already served, at [5].
Henry J wrote the reasons, with Bowskill CJ and Boddice JA each agreeing. All three grounds were the applicant’s; there was no notice of contention. Ground 1, on the totality principle, failed at [65], and ground 3, manifest excess, failed at [60]. Ground 2, the omitted declaration, was upheld, and at [7] the Court called it “merely an inconsequential oversight with no bearing upon whether the sentence was the result of a legally flawed determination”. At [66] it was “the only basis established for granting leave to appeal”.
Mandatory even when academic
Section 159A of the Penalties and Sentences Act 1992 (Qld) provides in subsection (1) that time held in custody in relation to proceedings for the offence must be taken as imprisonment already served “unless the sentencing court otherwise orders”. Where the court does otherwise order, subsection (3B) requires it, as part of the sentencing order, to state the dates, calculate the time, and either declare the part taken as served or declare that no time is taken as served.
Here the answer was fixed before the judge reached it. The armed robbery was committed on parole, and because s 411 of the Criminal Code (Qld) is listed in schedule 1 to the Penalties and Sentences Act 1992 (Qld), s 156A of that Act required that head sentence to be cumulative. On this Court’s earlier decision in R v Braeckmans [2022] QCA 25, s 159A must be read subject to s 156A, which precludes custody spent serving the earlier sentence from reducing the cumulative one, at [11]. So at [13] the only order available was one declaring that no pre-sentence custody counted.
The Court still required it. At [15], “as academic as it may seem”, the judge should have stated the dates, calculated the period and declared that no part of it counted, because that “was necessary ‘as part of the sentencing order’, pursuant to s 159A(3B)”.
What the Court did not decide matters as much. At [10] it said the subsection (1) default where no declaration is made “may be” that all the custody must be taken as served, and then expressly declined to resolve it, that outcome being incompatible with a cumulative sentence. At [12] it recorded that no error was argued in the decision to impose the four sentences concurrently and cumulatively on the earlier sentence.
Fix it below, not on appeal
This is the practical direction in the judgment. At [16] the omission was “a purely technical oversight which could easily be corrected”, as such an omission usually is, on a re-opening under s 188, which covers a court that has failed to impose a sentence it legally should have imposed and allows it to resentence accordingly. A party has 28 days, or any further time the court allows on application made at any time, and the court may reopen on its own initiative at any time.
At [17] Henry J said he “would ordinarily favour that course, particularly if the oversight was the only error contended for”, because leave applications “should not be encouraged merely for the purpose of making a correction which can still be made below”. He dealt with it in the Court of Appeal only because the other two grounds had already required the Court to engage with the sentence.
The appellate route ran through Kentwell v The Queen [2014] HCA 37. At [19] the Court recalled that where a sentencer’s discretion is vitiated by error giving rise to a legally flawed determination the appellate court should re-exercise it, but that not all errors do that, Kentwell itself giving the example of an inconsequential failure to make an order required by sentencing legislation. On these facts the oversight fell in that category, and the reason given at [19] was specific: “the present oversight was inconsequential to the determination of the resulting sentence”, because the cumulative imposition meant the sentence would operate as the judge intended “with or without the overlooked order”. That reasoning is tied to this sentencing structure, and the Court did not generalise it.
No re-exercise being needed, the Court still had a route to add the order. At [18] “the pathway for doing so is to grant the application for leave to appeal sentence and deploy the operation of s 668E(3)” of the Criminal Code (Qld), and at [20] the missing order meant “a statutorily necessary component of the sentence order was missing”, which made it open to the Court to hold that some other sentence, being the same sentence plus the order, was warranted in law. It then followed its usual convention of varying the sentence rather than quashing and re-passing it, at [21]. The Court recorded at [17] that the parties conceded it had the power but that the legal foundation “was not materially addressed”, so the pathway was worked out without contested argument.
Two ways to reason to a parole eligibility date
Ground 3 attacked the eligibility date rather than the head sentence, which was unremarkable: the judge thought five years appropriate and moderated it to four for the accumulation. At [51] fixing the date turns on all the variable circumstances, including whether the pre-sentence custody was spent serving an existing sentence, how much of it remained, whether the new head sentence is cumulative on it, and how much mitigation and totality are already in the head sentence. At [52] that combination makes it “inevitable” that the available range “is broad and that there is more than one way to reason to an appropriate parole eligibility date”.
The Court set out two. The first was the one taken below: moderate the head sentence for the accumulation, then set eligibility after a quarter of that sentence, at [53]. The second, at [55], measures against the total unbroken run of imprisonment from re-entry into custody to the expiry of the cumulative sentence, and sets eligibility after half of that total. On these facts the total was six years and four months, half was three years and two months, and the date would have been about 19 December 2026, two months earlier than the date actually set.
The status of that second approach must be stated as carefully as the Court stated it. It is considered obiter: it decided nothing and was deployed only as a cross-check on manifest excess. At [58] these reasons “should not be understood as suggesting those two approaches are the only ways to arrive at an appropriate parole eligibility date”, and “nor should they be understood as suggesting that the second approach is preferable to the first”. At [59] the small gap between the two results “does not bespeak manifest excess”.
Ground 1 failed for a related reason. The applicant said custody served before his release on parole should have moderated the new sentence. At [63] the judge’s view that this period was of no particular relevance was “plainly correct”, the relevant period being the unbroken run beginning when he re-entered custody. At [64] the earlier period “was logically irrelevant to the moderation required by the totality principle”.
Two further points carry beyond these facts. At [37], applying R v Hatahet [2024] HCA 23, an argument that earlier eligibility would better protect the community was disregarded so far as it assumed release when eligible, a prisoner’s prospect of release not being relevant to the sentencing task. And at [44], while mitigation can produce a date well before the half-way point, a recidivist offender “cannot expect to keep receiving such generously mitigated sentences; even more so if that offender’s plea of guilty is belated”.
How each point fared
| Point, and who advanced it | Outcome |
|---|---|
| Applicant’s ground 1, totality principle | Failed, at [65] |
| Applicant’s ground 2, the s 159A(3B) declaration was not made | Succeeded, and decided the appeal, at [15] and [66]. The error was inconsequential and did not vitiate the discretion, at [7] and [20] |
| Applicant’s ground 3, manifest excess | Failed, at [60] |
| The second method of reasoning to an eligibility date, at [55] to [57] | Considered obiter, and expressly neither preferred nor exhaustive, at [58] |
Published 7 October 2026.
Where this leaves the practice
The immediate lesson is administrative. Where an offender has been in custody and the sentence is to be cumulative, the declaration is a component of the order rather than a concession, and it should be sought and recorded at the sentence even when everyone agrees the answer is nil. Section 159A(4A) obliges the prosecuting authority to give the court a pre-sentence custody certificate for that purpose, and s 159A(6) lets the offender, the prosecution, or both jointly apply for a declaration. Where it was missed, s 188 in the sentencing court is the ordinary answer, and the 28 day period is the thing to watch, extendable though it is.
The harder lesson is what the omission is worth. It is an error and it will be acknowledged, but on this sentencing structure it did not disturb the discretion, so it brought the applicant no relief on the sentence he was actually serving. An application built on it alone invites the response in [17]. The substantive grounds are where the work is, and the useful material is at [51] to [57]: the range of reasoning open on an eligibility date for an offender who offended on parole is broad, and the total unbroken run of custody from re-entry, not the new head sentence in isolation, is the frame the Court used to test it. Two questions remain open, both left so deliberately, being the default where no declaration is made and whether any method other than the two described is available.
Related reading
- RNT v QPS: pre-sentence custody and the limits of the Magistrates Court
- R v Ford: dangerous operation and parole eligibility
- Farrugia v The King: shared counsel and co-offenders on sentence
- Criminal law at Fraser Lawyers
Source: R v Johnson [2026] QCA 195, Supreme Court of Queensland, Court of Appeal, Bowskill CJ, Boddice JA and Henry J, 2 October 2026, on an application for leave to appeal against a sentence imposed in the District Court at Brisbane on 4 December 2025 (Farr SC DCJ). The provisions discussed are the Penalties and Sentences Act 1992 (Qld) ss 9(1), 13, 156A, 159A and 188 and schedule 1 to that same Act, and the Criminal Code (Qld) ss 411 and 668E(3).
Facing a sentence in Queensland? How time already spent in custody is treated, and when parole eligibility falls, can shape a sentence as much as its length. Contact Fraser Lawyers to discuss where you stand. |
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