Background
Lindsay Derain Johnson pleaded guilty to armed robbery in company, unlawful use of a motor vehicle to facilitate an indictable offence in company, breaking and entering and stealing, and entering premises with intent to commit an indictable offence. In October 2023, while on parole, he and other masked offenders attacked a man resting in his parked car, took property including the car, and later used that car when Johnson entered another person’s garage and searched her vehicle.
On 4 December 2025, the District Court imposed concurrent sentences, headed by four years for armed robbery, cumulative on a prior sentence that was due to expire on 20 February 2026. It fixed parole eligibility at 20 February 2027. Johnson sought leave to appeal, alleging error in applying totality, failure to make a required pre-sentence-custody declaration, and manifest excess.
The Court’s Holding
The Court granted leave and allowed the appeal only to correct the omitted statutory declaration under s 159A(3B) of the Penalties and Sentences Act 1992 (Qld). It added an order stating that Johnson was in pre-sentence custody from 19 October 2023 to 3 December 2025, a period of 777 days, and declaring that none of that time counted as imprisonment already served under the new sentence.
The omission was a technical oversight, not an error that vitiated the sentencing discretion. Because the armed robbery was committed while Johnson was on parole, its sentence had to be cumulative under s 156A; the custody spent serving the earlier sentence could not reduce the new cumulative sentence. The Court rejected the totality and manifest-excess grounds. Given the seriousness of the offending, Johnson’s substantial and similar criminal history, repeated offending on parole, and belated pleas, the 20 February 2027 parole eligibility date was within the permissible sentencing range.
Key Takeaways
- A sentencing court must make the s 159A(3B) declaration where applicable, including the custody dates, duration and whether the time counts as served.
- A missing custody declaration may be corrected on appeal without re-exercising the sentencing discretion where it is purely technical.
- For an offender who commits an offence on parole, totality concerns focus on the resulting unbroken period of custody, not custody served before the offender was released on parole.
Why It Matters
The decision distinguishes a formal defect in a sentencing order from a substantive sentencing error. It confirms that an appellate court may vary a sentence to insert a legally required custody declaration while leaving the underlying sentencing judgment intact.
It also illustrates that a parole eligibility date can remain justified even where a cumulative sentence follows an existing sentence, particularly for a recidivist offender who committed serious further offences while on parole.