A magistrate reaches the three-year ceiling and considers that crediting time already spent in custody would make the sentence inadequate. The familiar response is to question whether the charge should remain in the summary jurisdiction. In RNT v QPS [2026] QDC 107, the Magistrate took a different course: three years on the principal charge, with about six months of pre-sentence custody taken into account but not declared. The appellant could therefore serve more than three years in practical terms.
Clarke DCJ held that the order was lawful. The head sentence, not its practical effect, answered the jurisdictional question. That conclusion is textually convincing because the legislation expressly allows a sentencing court to order that pre-sentence custody not count as time already served. The harder point is the relationship between that power and the duty to abstain from summary disposal if an offender may not be adequately punished. The reasons resolve that point, but explain it only briefly.
The sentence did not exceed the Magistrate’s limit
The appellant pleaded guilty in the Rockhampton Magistrates Court to 18 offences arising from protracted and escalating domestic violence. The offending breached a protection order, occurred while the appellant was on probation for similar offending against the same complainant, and exposed the couple’s young children to most of it. The Magistrate imposed a global sentence of three years’ imprisonment on charge 17, an assault occasioning bodily harm offence, consistently with the totality principle in R v Nagy [2003] QCA 175; [2004] 1 Qd R 63. Lesser sentences were concurrent.
The custody accounting mattered. The Magistrate declared 186 days against the other offences. A further 64 days was taken into account but not declared because it had already been declared against other offences. On charge 17, about six months was taken into account but not declared. The Magistrate fixed 17 April 2027 as the parole release date.
The appellant accepted that the three-year sentence itself was sound. The alleged error was narrower: by refusing the declaration, the Magistrate had produced a period in custody whose practical effect exceeded the three-year limit in Criminal Code (Qld) s 552H(1)(b). On that argument, the Magistrate should instead have abstained under s 552D.
The District Court rejected the distinction as a source of error. The Magistrate had imposed no more than three years. Taking custody into account without declaring it did not enlarge that sentence, even if the appellant would spend more than three years in custody in practical terms. Clarke DCJ found no legal, factual or discretionary error, dismissed the appeal and confirmed the sentence.
The statute separates the sentence from time served
The result turns on the last words of Penalties and Sentences Act 1992 (Qld) s 159A(1). Time held in custody in relation to proceedings for an offence must be treated as imprisonment already served under the sentence, unless the sentencing court otherwise orders
. The declaration is the ordinary course, but it is not inevitable.
Clarke DCJ accepted that a residual discretion remains to take strictly declarable custody into account without declaring it. That was not a novel proposition advanced by only one side. The parties made a joint submission on the existence of the discretion, although they disputed its proper exercise in this case.
The reasons also identify why the device may look more familiar to defence practitioners in the opposite direction. A court may be asked not to declare custody so that it can impose a head sentence of three years or less and retain the ability to fix a parole release date. Here the same mechanism worked against the offender. It preserved the three-year head sentence while withholding the usual credit.
I think the Court was right to treat sentence and practical time served as distinct for the purpose of s 552H(1)(b). Otherwise, the closing words of s 159A(1) would lose much of their work whenever a magistrate imposed the maximum term. The statutory ceiling regulates the sentence imposed. It does not say that all custody attributable to the proceedings must fit within that term after every crediting decision.
The court must give warning before withholding credit
This course cannot arrive as a surprise at sentence. During submissions, the Magistrate told the appellant’s representative that three years with a declaration would not, in his view, be just for the most serious charge. He made plain that he was considering three years without treating the pre-sentence custody as time already served.
That notice was consistent with R v Cunningham [2005] QCA 321. A court breaches natural justice if it imposes a penalty without giving the affected person an opportunity to respond. Here both sides did respond. The prosecutor accepted that three years without the declaration was available. The appellant’s representative conceded the power existed but argued that the declaration should be made and parole fixed at the one-third point.
That exchange is more than procedural colour. A defence submission that invites a sentence near the summary ceiling should deal expressly with the proposed treatment of pre-sentence custody. If the court raises non-declaration, counsel should address both limbs: why the discretion should not be exercised, and whether the court’s concern about adequate punishment instead engages the originating jurisdiction.
The reasons leave a jurisdictional edge
The appellant’s best point lay in Criminal Code (Qld) s 552D. A Magistrates Court must abstain from dealing summarily with a charge if satisfied, after hearing submissions, that the defendant may not be adequately punished on summary conviction because of the offence’s nature or seriousness or another relevant consideration. The appellant argued that the Magistrate’s own remarks showed precisely that concern.
There is force in the counter-argument. If three years with ordinary custody credit is inadequate, using non-declaration to increase the practical period may look like doing indirectly what the jurisdictional ceiling prevents directly. It also sits uneasily with the ordinary rule, recognised in R v Fabre [2008] QCA 386, that pre-sentence custody should be declared.
Clarke DCJ nevertheless held that the Magistrate was entitled to reach a just sentence by taking custody into account without declaring it. The reasons emphasised the seriousness of the offending, the protection order and probation breaches, the appellant’s relevant history, the exposure of young children, and the absence of demonstrated rehabilitative effort. The sentence was heavy and another judicial officer might not have imposed it, but it was not unreasonable, plainly unjust or outside the permissible range.
I would not read the decision as giving non-declaration a general role in curing doubts about summary adequacy. The Court found this order lawful, but it did not closely reconcile the mandatory language of s 552D with the Magistrate’s statement that adequate punishment required both the maximum head sentence and non-declaration. That boundary remains fact-sensitive. It should be argued before sentence, not reconstructed on appeal.
Practitioners should separate four questions at sentence
First, calculate every period of pre-sentence custody and identify whether it has already been declared elsewhere. The 186-day and 64-day periods in this case show why a single total can obscure the legal treatment of different days.
Second, identify the proposed head sentence independently of custody credit. Third, ask whether the court is considering an order that custody not count as time already served. The ordinary position and the residual discretion are not the same thing. Fourth, if the court considers that the summary ceiling cannot adequately punish the offending, address s 552D directly.
On appeal, dissatisfaction with the practical result is not enough. This was a rehearing under Justices Act 1886 (Qld) s 223(1), but intervention still required legal, factual or discretionary error of the kind described in House v The King [1936] HCA 40; (1936) 55 CLR 499. The appellant had conceded below that the Magistrate possessed the power exercised. The task was therefore to show error in its exercise, and Clarke DCJ found none.
The Criminal Code (Qld) and the Penalties and Sentences Act 1992 (Qld) should be read together before submissions are settled. Related Fraser Lawyers material includes the firm’s criminal law practice and family law practice.
Published 6 August 2026.
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