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[2026] QCA 36
respondent. The application for leave to appeal against sentence was refused.
3 cited instruments linked from this judgment.
The Court of Appeal did not find a basis to interfere with the six-year sentence or the serious violent offence declaration. Although the offender was young, had no criminal history, pleaded guilty early and showed remorse and rehabilitation prospects, the Court considered the knife attack especially serious. The complainant was already on the ground and vulnerable when stabbed, and the injuries threatened his life. The earlier interaction did not make the stabbing justified or place it in a meaningfully less serious category than the relevant comparable cases. The application for leave to appeal was therefore refused. The Court also suggested that the existing six-to-seven-year range for this kind of offence may warrant future reconsideration.
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2,325 words · generated 08/10/2026
In the early hours of 31 March 2024, a fight broke out outside a nightclub in Fortitude Valley. Phillip Corey Aloese was 21. The complainant, PM, was 22, and the two did not know one another. Earlier that night, PM took a drink from a table near the applicant. The applicant became confrontational and demanded that PM replace it. PM eventually left the nightclub through a back entrance [3].
At about 3.15 am, PM returned to the front of the nightclub, apparently looking for the applicant. The applicant punched him in the side of the face. A brawl involving the applicant, PM and their respective groups followed. PM ended up on the ground while others were assaulting him. CCTV showed the applicant take a knife from his pocket, approach PM and stab him twice in the lower back, then kick him [4]. The applicant later discarded the knife [5].
The injuries were grave. PM suffered a lacerated spleen, a haemothorax, a skull fracture and a brain injury. The spleen injury and haemothorax were likely to endanger his life without medical intervention [6].
Aloese pleaded guilty to grievous bodily harm. He had no criminal history, pleaded at the earliest opportunity and expressed remorse [7], [11]. The sentencing judge imposed six years’ imprisonment, declared the offence a serious violent offence and ordered 40 hours of community service to be performed after release [23]. The declaration meant the applicant would not be eligible to apply for parole until he had served 80 per cent of the sentence [1], referring to s 182(2) of the Corrective Services Act 2006 (Qld). The mandatory community service order arose under ss 108B and 108D of the Penalties and Sentences Act 1992 (Qld), as described by the Court [12].
The appeal focused on the declaration’s effect on the sentence. The applicant argued that the judge wrongly treated the incident as gratuitous street violence comparable to Bryan, and that the sentence did not sufficiently account for his youth, guilty plea, remorse and rehabilitation prospects [24]–[27]. The Court of Appeal refused leave [2], [48].
The Court began with the limits on sentence appeals. Under the approach summarised from R v Muirhead at [64], intervention requires either express material error, such as a mistake of law or fact or reliance on an irrelevant consideration, or implied error. Implied error arises where the outcome is so unreasonable or unjust that the appellate court must infer a substantial wrong. The Court also emphasised that an appellate court cannot substitute its preferred sentence merely because it might have exercised the discretion differently [28].
The applicant’s specific challenge was to the description of the offending as gratuitous. The Court rejected his argument that the stabbing was better characterised as an excessive response to provocation or a perceived threat to his cousin. The sentencing judge had recognised that there was some earlier context and that the applicant had not attacked a random passer-by. But, on the agreed facts, the applicant started the fight, and PM was on the ground, vulnerable and no longer posing a threat when the applicant stabbed him [27], [29]. The Court explained that “gratuitous” meant “uncalled for; unjustifiable” and considered that description apt for stabbing someone in those circumstances [29].
The broader sentencing assessment relied on the features of the conduct and the comparable authorities. The applicant had taken a knife into public, was intoxicated, used it in a fight he started, and caused potentially life-threatening injuries. The Court treated the fact that the earlier dispute was petty as insufficient to make the offence materially less serious [45]. It considered that public knife violence calls for denunciation and deterrence in the interests of community protection [44]–[46].
The Court did not disregard the applicant’s favourable personal circumstances. It acknowledged his youth, lack of criminal history, early guilty plea, remorse and sound rehabilitation prospects [7], [11], [47]. Its conclusion was that those factors did not distinguish him sufficiently from the comparable cases or require a finding of implied error [47]. The decisive appellate question was not whether another sentence was open, but whether the sentence actually imposed crossed the threshold for intervention. The Court said a longer term without a declaration would also have been open, but the six-year term with the declaration was not unreasonable or plainly unjust [48].
The judgment describes, rather than replacing, an established approach to sentence appeals. The governing appellate framework quoted at [28] comes from Muirhead, with the familiar distinction between express and implied error. A sentence appeal is not a rehearing of the sentencing discretion: a different sentence being available does not itself establish error.
The judgment also explains how the serious violent offence declaration fits into the sentencing assessment. It cites R v Free for the proposition that the decision whether to make a declaration is part of an integrated sentencing process. The sentencing court considers all relevant circumstances, including the statutory matters under ss 9(1), 9(2) and primarily s 9(6) of the Penalties and Sentences Act, to assess whether aggravating circumstances indicate that public protection or adequate punishment requires the offender to serve 80 per cent of the head sentence before applying for parole [42]. The Court considered that the sentencing judge had made that assessment by reference to the aggravating features identified in the sentencing remarks [43].
The cases discussed provide the sentencing context applied in Aloese. In Bryan, the Court of Appeal resentenced the offender to six years after finding a four-year sentence manifestly inadequate. The judgment notes that the Bryan Court considered a six-year sentence with a declaration appropriate, but no declaration was made because one was not sought [31]–[33]. In Thomason, a six-year sentence and a serious violent offence declaration were imposed for a public knife attack causing life-threatening injuries [34]–[38]. In Sellies-Cullen, the Court held that six years with a declaration was not unreasonable or plainly unjust, despite the availability of a longer term without a declaration [39]–[41].
The judgment’s forward-looking observation is at [49]. Bowskill CJ said it “may be time to consider” whether the six-to-seven-year range for guilty pleas to this kind of offence remained appropriate, or whether the penalty should be higher. The judgment does not change that range in this case. Instead, it says the sentence was at the lower end of the range established earlier and was consistent with existing cases [48]–[49]. The Court also identified a sentencing-policy concern: a substantial head sentence may achieve denunciation and punishment differently from requiring an offender to serve 80 per cent of a lower sentence, which can diminish post-release parole supervision and tangible credit for a guilty plea [49]. That observation is not a new binding sentencing range or a direction to impose higher sentences.
The statutory provisions mentioned in the judgment supply additional context. Section 320 of the Criminal Code sets the maximum penalty for grievous bodily harm at 14 years [12]. Sections 108B and 108D of the Penalties and Sentences Act require a community service order for the specified public-place offending while intoxicated and suspend it during imprisonment [12]. The Court’s disposition concerned the sentence appeal, not a separate challenge to the operation or validity of those provisions.
At [28], the Court sets out the appellate test: intervention is available for express or implied material error, but the appellate court cannot substitute its own sentencing preference simply because it would have chosen differently. In practical terms, disagreement about the sentence is not enough. The alleged error must meet the applicable threshold.
At [29], the Court defines “gratuitous” as “uncalled for; unjustifiable”. It applies that meaning to the state of PM when stabbed: he was on the ground, vulnerable and no longer a threat. In plain English, the earlier dispute did not justify the later knife attack once the complainant was subdued.
At [42], the Court sets out the relevant approach to a serious violent offence declaration from Free. The sentencing court must consider the relevant circumstances and ask whether aggravating features mean public protection or adequate punishment requires service of 80 per cent of the head sentence before parole application eligibility. This is not described as an automatic consequence of any grievous bodily harm offence; it is an evaluative sentencing decision.
At [44]–[47], the Court explains why the mitigating factors did not change the result. It recognised those factors, but considered that serious public knife violence required substantial weight to be given to deterrence, denunciation and community protection. The Court treated the relevant comparators as supporting that balance.
At [48], the Court says another sentencing outcome was open, including a longer term without a declaration, but the sentence imposed could not be described as unreasonable or plainly unjust. This illustrates the difference between identifying an alternative within the sentencing discretion and proving appealable error.
At [49], the Court raises a possible future issue about the adequacy of the six-to-seven-year range and the relationship between head-sentence length, parole restrictions and the opportunity for supervision. The passage is an observation for future consideration. It does not alter the result in Aloese or establish a new range.
The decision is most directly relevant to sentencing appeals involving serious public knife violence where the offender carries a knife, uses it in a confrontation, and causes grievous bodily harm. Its reasoning places particular emphasis on the victim’s condition at the moment of the stabbing: PM was already on the ground, vulnerable and no longer posing a threat [29], [45].
The decision also addresses situations where the offending has some immediate background or interpersonal context. The Court did not treat the earlier interaction as irrelevant, but held that it did not make this stabbing meaningfully less serious. The applicant had initiated the outside fight, and the earlier incident was characterised as petty [45]. The judgment therefore cautions against assuming that a preceding dispute, perceived slight or claimed concern for another person will necessarily prevent a court from describing an attack on a subdued victim as gratuitous.
The authorities considered involved some differences in age, criminal history, circumstances and injury. Bryan concerned a stranger attack and an offender who evaded police; Thomason involved a younger offender and a stabbing from behind; Sellies-Cullen involved robbery alongside grievous bodily harm. The Court used them as sentencing comparators, not as factually identical cases [31]–[41]. The relevant connection was the serious public knife violence and the need for punishment, deterrence, denunciation and community protection.
For sentence appeals, the precedent is especially relevant where the asserted error is that the sentencing judge gave too much weight to aggravating features or insufficient weight to personal mitigation. The judgment does not say mitigation is irrelevant. Rather, it holds that favourable personal factors did not compel a finding of error on these facts [47]. Any comparison requires attention to the particular offending, the sentencing reasons, the statutory framework and the authorities relied upon.
The supplied judgment contains no decisions made after R v Aloese and therefore does not establish how later courts have treated it. It would not be possible, from this text alone, to say that later courts have followed, distinguished or applied Aloese.
Within the judgment itself, the Court treats Bryan, Thomason and Sellies-Cullen as relevant comparable authorities and treats Free as explaining the declaration discretion. It cites Muirhead for the appellate-error framework and refers to House v The King in connection with the applicant’s argument about inferred error [25], [28], [31]–[42]. Those are the relationships stated in this decision; they are not evidence of later treatment of Aloese.
The judgment’s own indication of possible future development is its comment at [49] that the six-to-seven-year range may warrant reconsideration. That is an observation by Bowskill CJ, with Bradley JA and Wilson J agreeing in the result and reasons generally [50]–[51]. The passage does not report that any later court has acted on the observation.
The principal open question identified by the Court is whether the six-to-seven-year range for guilty pleas to offences of this kind remains appropriate, or whether a higher penalty should be considered [49]. The judgment does not decide that question. It upholds the sentence because it remained consistent with the existing authorities and was at the lower end of the range described [48]–[49].
A related policy question is how sentencing courts should balance a substantial head sentence against a serious violent offence declaration that delays parole eligibility until 80 per cent of the sentence has been served. The Court observed that a higher head sentence may have different effects on parole supervision and the tangible recognition of a guilty plea than a lower sentence combined with the declaration [49]. It did not prescribe a preferred balance.
The decision also leaves factual questions for future cases. For example, the extent to which a genuine immediate threat to another person, a materially different role in a fight, or a complainant’s capacity to defend themselves might affect the characterisation of a stabbing would depend on the evidence and the sentencing reasons. Aloese rejects the claimed distinction on its facts, where the applicant started the fight and stabbed a vulnerable complainant who was already on the ground [27], [29], [45]. It does not set out a general rule resolving every case involving intervention in a fight.
Finally, the judgment does not resolve how the suggested range should apply across different forms of grievous bodily harm offending, different degrees of injury, or materially different offender circumstances. Its comparison is tied to the authorities discussed and to the features it considered central: public knife use, intoxication, a vulnerable victim, life-threatening injury and the need for community protection [31]–[48].
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Aloese [2026] QCA 36
PARTIES: R / v / ALOESE, Phillip Corey / (applicant)
FILE NO: CA No 128 of 2025 / DC No 639 of 2025
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Brisbane – Date of Sentence: 30 May 2025 (Williamson KC DCJ)
DELIVERED ON: 6 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 11 February 2026
JUDGES: Bowskill CJ, Bradley JA, Wilson J
ORDER: The application for leave to appeal against sentence is refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to the offence of causing grievous bodily harm, in a public place, while intoxicated – where the offence was committed in the early hours of the morning, outside a nightclub in the Valley – where there had been an interaction between the applicant and the complainant during the previous night, but the complainant had walked away – where, in the early hours of the next day, the complainant was outside the nightclub and the applicant punched him to the side of his face – where a brawl broke out involving the applicant, the complainant and their respective friends and family – where the complainant ended up on the ground during the fight, being assaulted – where the applicant removed a knife from his pocket, approached the complainant while he was on the ground and stabbed him in the lower back twice, then kicked him – where the applicant was a young man, aged 21 at the time of the offence, had no criminal history, was remorseful and had sound prospects of rehabilitation – where the applicant was sentenced to imprisonment for six years, with a declaration that the conviction was a serious violent offence – where a mandatory community service order was also made, requiring the applicant to perform 40 hours of unpaid community service following his release from custody – where the applicant applies for leave to appeal against his sentence on the ground that the serious violent offence declaration rendered the sentence manifestly excessive – where the applicant submits the sentencing judge made a specific error in the way his Honour characterised the offending as “gratuitous street violence”, and also submits error should be inferred because the sentencing outcome is unreasonable or unjust – whether the sentencing judge erred in the way in which he characterised the offending, having regard to the comparable cases relied on – whether in any event the sentence imposed was manifestly excessive as a result of the declaration / Corrective Services Act 2006 (Qld), s 182(2) / Criminal Code (Qld), s 320 / Penalties and Sentences Act 1992 (Qld), s 9(1), s 108B, s 108D, s 161B(3) / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; [2003] QCA 18, considered / R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, considered / R v Muirhead (2019) 279 A Crim R 510; [2019] QCA 244, considered / R v Sellies-Cullen [2023] QCA 247, considered / R v Thomason; Ex parte A-G (Qld) [2011] QCA 9, considered
COUNSEL: J C Bonner for the applicant / E L Kelso for the respondent
SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: In the early hours of the morning on 31 March 2024, a brawl broke out outside a nightclub in Fortitude Valley. The applicant, a young man of 21 at the time, punched and then stabbed another young man, aged 22, causing him serious injuries. The applicant pleaded guilty to causing grievous bodily harm, in a public place, while intoxicated. He was convicted, on his plea of guilty, and sentenced to imprisonment for six years. As part of the sentence, the sentencing judge declared that he was convicted of a serious violent offence,1 the effect of which is that the applicant will not be eligible for parole until he has served 80 per cent of his sentence.2 A mandatory community service order was also made, requiring the applicant to perform 40 hours of unpaid community service (following his release from custody). The applicant applies for leave to appeal against his sentence, on the ground that the serious violent offender declaration rendered the sentence manifestly excessive.
Having regard to the circumstances of this case, the relevant sentencing principles and comparable authorities, the sentence cannot be said to be manifestly excessive. I would therefore refuse leave to appeal the sentence.
The circumstances of the offending
The applicant and the victim, PM, did not know each other. On the evening of 30 March 2024, they were each out at a nightclub in the Valley with their respective friends or family, drinking. There was an interaction between the applicant and PM at some stage during the night – PM came to the area where the applicant was with his friends and family and took one of the drinks that was on a table. The applicant “became confrontational” and behaved aggressively towards PM in that context, demanding that PM buy him a new drink. PM left and went outside to the smoker’s area. PM returned to where the applicant was a few times, but eventually left the nightclub through a back entrance.
According to the agreed statement of facts, later, at around 3.15 am the next morning, 31 March 2024, PM walked to the front of the nightclub. As he was standing there, apparently looking for the applicant, PM was punched to the side of the face by the applicant. PM became dizzy. He tried to punch the applicant back but missed. The applicant and PM’s friends all came running towards them and a brawl broke out. The applicant’s friends were holding PM back. PM ended up on the ground during the fight, being assaulted. The applicant was captured on CCTV removing a knife from his pocket. He approached PM while PM was on the ground and stabbed him in the lower back twice, then kicked him.
When police arrived, the applicant was uncooperative. The police eventually had to present a taser to get the applicant to comply with their directions. The knife was found in a grassy area nearby, having been discarded by the applicant.
PM suffered serious injuries as a result of being stabbed, including laceration of his spleen and a haemothorax (blood inside his chest cavity), as well as a skull fracture and brain injury. The brain injury did not require surgery, but did cause numbness. PM required rehabilitation while in hospital to be able to walk normally. The injury to PM’s spleen and the haemothorax were both likely to endanger his life, without medical intervention.
The sentence hearing
The applicant was, as noted, a young man of 21 at the time. He had no criminal history. He pleaded guilty at the “earliest possible opportunity” and was remorseful.
By the time of the sentence hearing, the applicant had been in custody on remand for almost 14 months.
A psychological assessment report was tendered at the sentence hearing. The report revealed the following. The applicant came to Australia with his family from Samoa when he was one. He reported to the psychologist that he was exposed to both violence, within his home environment and outside of it, and substance abuse growing up. Fighting during his school years was “normalised”. He also held strong cultural beliefs about the need to protect family. The applicant left school at the start of year 12 and started working in a range of different jobs. From about 19, he started working as a security guard at nightclubs in Sydney. The applicant had travelled to Queensland to visit family just before the offence was committed. On the night in question, he went out with his cousin and his older brother’s partner. He had consumed a substantial amount of alcohol. The applicant told the psychologist that he had a flick knife with him on the night, saying that he carried the knife for his own protection; “a safety measure”.
The applicant acknowledged to the psychologist that PM’s behaviour on the night “annoyed him”. He also said that, after the brawl erupted outside, he saw “someone on top of my cousin” and that is what triggered him to react, using the knife.
The applicant expressed shame and remorse for his offending. The psychologist expressed the view that the applicant had “sound rehabilitation prospects and a low risk of recidivism”, due to a number of protective factors including meaningful vocational direction upon his release, stable accommodation, the strong support of his family unit, the absence of any diagnosable alcohol/drug misuse disorders, his expressed commitment to “help-seeking behaviours”, his capacity for empathy and his expressed contrition.
The maximum penalty for the offence of grievous bodily harm is 14 years’ imprisonment.3 Where the offence is committed in public and while the offender is intoxicated, s 108B of the Penalties and Sentences Act requires the sentencing court to make a community service order for the offender, regardless of any other order which is made (including imprisonment).4 If the offender is sentenced to imprisonment for the offence, the community service order is suspended until they are released.5
The sentencing remarks
“You may not have gone out that night looking for a fight, but you found one. In that context, you made a decision to use a knife you carried. The knife was not used because of a fear for your own safety. As to the use of a knife, the footage does not make good, in my view, what you apprehended. What is clear from the video footage is that the complainant was in a vulnerable position when you stabbed him twice. Indeed, it looks on the video footage that he was unable to raise a hand to even protect himself. He had someone over the top of him, assaulting him. To suggest the person on top of him was somehow at risk cannot be accepted, in my view.”6
“In my view, the explanation for this offending is simple. This offence was the product of an escalating event fuelled by alcohol. It built between you and the complainant from a series of verbal exchanges to fighting and ended with a stabbing. The underlying reason for it is, in my view, petty. You felt slighted by the complainant. I do not accept an apprehension of fear on your part or perceived need to protect a family member is an explanation for this cowardly stabbing in the back. The fact of the matter is the complainant posed, in my view, little, if any, threat to you, nor did he pose any genuine threat to people assaulting him. He looked to be on the losing end of that fight. At the time you stabbed him, he was defenceless. He appeared to be unable to raise a hand to protect himself and was in a vulnerable position. Despite this, you stabbed him twice and kicked him. The kick showed a complete lack of regard for a person who had suffered a life-threatening injury inflicted by you.”
“(1) the attack involved the use of a weapon, namely a knife in such a way as to endanger the complainant’s life; (2) you stabbed the complainant twice in circumstances where he was in a vulnerable position and unable to defend himself. He was on the ground, being assaulted by another person and posed no threat to your safety at this time; (3) after stabbing the complainant, you returned to kicking, demonstrating disregard for his wellbeing; (4) you were not deterred by the presence of police; (5) the offending occurred in a public place late at night while you were adversely affected by alcohol; (6) you did not cooperate with the police until threatened with the use of a taser; (7) you sought to distance yourself from the knife used in the attack by discarding it in a nearby bush; and (8) your actions caused serious injury to the complainant.”
“The psychologist report notes that you have expressed remorse for your offending. This is consistent with the letter that you provided to the court and character references which I have read and considered carefully. Collectively, they confirm, in my view, that you take full responsibility for your offending, and you apologise in an unreserved way to the complainant. I am satisfied that you are remorseful for your offending, and your remorse is genuine.
…
The psychologist report indicates that you have also taken some early steps towards your rehabilitation. Those steps, however, have been hampered due to your status in prison. You have not been able to undertake courses while in custody due to that status, and the status is you have been awaiting sentence. That you have demonstrated willingness to participate in courses and the like is a positive step along what will be a considerable journey for your rehabilitation. All of that said, save for the initial courses in custody, your rehabilitation has not progressed very far. You require considerable assistance with anger management. While an assessment at this stage suggests you enjoy sound prospects of rehabilitation and present as having a low risk of recidivism, it is, in my view, too early to make a call particularly about rehabilitation. This will be a matter for the Parole Board in due course.”7
“In my view, general deterrence, denunciation and community protection are significant factors in the exercise of the discretion. This is so given the aggravating features of the offending to which I have already referred. I am also cognisant of your age, prospects of rehabilitation, such as they are or can be foreseen at this stage, and low risk of recidivism coupled with remorse. Your plea of guilty should not be lost sight of. The serious nature of the offending here however requires, in my view, that that weight should not overwhelm deterrence, denunciation and community protection. This is a very serious offence.”
His Honour referred to the decisions of this Court in R v Sellies-Cullen [2023] QCA 247, R v Bryan; Ex parte Attorney-General (Qld) [2003] QCA 18, R v Thomason*; Ex parte A-G (Qld)* [2011] QCA 9 and R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80, saying that they “establish that, as a yardstick for this offending, a term of imprisonment of six to seven years can be considered for youthful offenders”. His Honour said it was also clear from these authorities that “this offending may attract a serious violent offence declaration”, but that if such a declaration is made, “this tends towards a term of imprisonment at the lower end of the range … just mentioned”.
His Honour referred in particular to [35] of Bryan, where Williams JA (with whom de Jersey CJ and Cullinane J agreed) said:
“Given the need to protect the community from offences such as the present one, given that this was an unprovoked, vicious and cowardly attack upon an innocent passer-by in a public street, and given the use of a knife in such a way as to seriously threaten life a sentence in the range six to seven years was the minimum that could be considered as the head sentence. The circumstances here would often justify the making of a declaration that the offence was a serious violent one, but no such declaration was, or is now, asked for.”9
“Weight must be given to your age, guilty plea, remorse, personal circumstances and prospects of reoffending and rehabilitation. I have difficulty accepting that these matters, in combination with the explanatory matters relied upon, are such as to overwhelm general deterrence, denunciation and community protection. I was also unpersuaded that the evidence about your rehabilitation efforts suggested your parole eligibility ought be fixed ahead of the one-third mark.
As a consequence, to give effect to the purposes of the sentence I mentioned earlier and to reflect the aggravating and mitigating circumstances to which I have referred, I will order as follows. I order that you be sentenced to a term of imprisonment of six years. I declare the offence a serious violent offence. I will order you serve 40 hours of community service, which is to be completed within 12 months of the date of your release on parole or upon final discharge of your sentence. And I will declare, subject to hearing from the legal representatives, 426 days as time already served in custody for this offending between the period 31 March 2024 to 29 May 2025. As to the serious violent offence declaration, I am satisfied the aggravating features here which I have already identified suggests adequate punishment in your case requires a longer period of actual custody. The circumstances here call for severe punishment as was the case in Bryan at paragraph [30].”10
Arguments on the appeal
The applicant submits the sentence imposed was manifestly excessive because of the inclusion of the “serious violent offence declaration”. The applicant submits the error in this regard was the result of the following:the sentencing judge placing too much weight on the offending conduct being “gratuitous street violence” and in the same category as Bryan, when there were important factual distinctions;the sentencing judge letting the seriousness of the offence overwhelm the mitigating features in the applicant’s favour, notably, his young age, lack of criminal history, demonstrated remorse – including by his early guilty plea – and promising prospects of rehabilitation;11 andfailing to reflect the applicant’s early guilty plea in the sentence in a tangible way.
As the argument was developed at the hearing of the appeal, counsel for the applicant submits the sentencing judge made a specific error, in the way in which he characterised the applicant’s conduct as “gratuitous street violence”, and also that error should be inferred from the outcome.12
As to the first point, the applicant submits that it was wrong to characterise his conduct as gratuitous street violence, because it was more properly characterised as “an excessive response to provocative conduct by the complainant, which included an assault on the applicant and the applicant’s cousin”. The applicant submits this was an important point of distinction, placing the applicant’s offence into a less serious category than the offending in Bryan.
The respondent takes issue with the applicant’s characterisation of his offending, emphasising that on the agreed statement of facts, PM had removed himself from interaction with the applicant, and it was the applicant who continued his aggressive behaviour towards PM; it was the applicant who threw the first punch; and there was no evidence in the statement of facts that PM and his friends were assaulting the applicant’s cousin (as opposed to the applicant stating that he perceived this to be the case). More broadly, the respondent submits the sentence, including the “serious violent offence” declaration, was not manifestly excessive. The respondent submits the sentencing judge was correct to conclude that in light of the aggravating circumstances of this case, adequate punishment and community protection required that the applicant serve 80 per cent of his sentence in custody.
The sentence was not manifestly excessive
“This Court can intervene if the appellant demonstrates either an express or an implied material error. Express error includes acting on a wrong principle (for example, mistaking the law or the facts or taking into account an irrelevant consideration). Implied error arises where the sentencing outcome is so unreasonable or unjust that this Court must conclude that a substantial wrong has occurred. The discretion conferred on sentencing judges is, of course, of fundamental importance and this Court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion differently.”
As far as the characterisation of the offence is concerned, I do not accept that the sentencing judge made any error. The sentencing judge’s description of the explanation for the offending, in the paragraph set out at paragraph [17] above, accurately reflects the agreed statement of facts. The sentencing judge took account of the fact that there was some earlier context to the brawl and eventual stabbing; that the applicant did not attack a random person on the street. However, notwithstanding that there was some context, his Honour was right to describe the applicant’s conduct as “alcohol-fuelled, gratuitous violence with a knife”. In this context, gratuitous simply means “uncalled for; unjustifiable”. It is gratuitous violence to stab a person who has been subdued by others, is on the ground, is vulnerable and no longer posing a threat.
More broadly, when regard is had to the factual circumstances of this case, and the relevant comparable authorities, I am unable to conclude that the sentence imposed on the applicant was “so unreasonable or unjust that this Court must conclude that a substantial wrong has occurred”.
The first of the comparable cases referred to was Bryan. The victim and the offender in this case were strangers. The offender was the initial aggressor, in what was a random attack on the victim as he and his girlfriend, and two others, were walking through the city in the early hours of the morning after a New Years Eve out. A fight started between the offender and the victim, initially involving mutual kicks and punches. In the course of the fight, the offender, who was intoxicated by alcohol and cannabis, stabbed the victim causing three open wounds, including an extensive wound to the lower left chest. Untreated, the victim would have died. He survived the injuries, although suffered nerve damage which caused ongoing numbness.
The offender in Bryan evaded the police for about four weeks, including by telling his girlfriend to lie to police about his whereabouts and what he had been wearing on the night, and threatening her. By reference to this, the sentencing judge described the offender as having shown a lack of remorse. The offender had no previous convictions for violence but had some minor convictions for property offences. He was also aged 21 at the time of the offence.
At first instance, the offender in Bryan was sentenced to four years’ imprisonment. On the Attorney-General’s appeal, that sentence was found to be manifestly inadequate and outside the scope of the proper exercise of the sentencing discretion. The offender was resentenced to six years’ imprisonment. Both Williams JA (at [35], set out above) and de Jersey CJ (at [5]) said that a penalty of six years with a declaration would have been appropriate; but as one was not asked for, and it was an Attorney’s appeal, no declaration was made.
“the respondent was carrying a knife, and used it; he thereby occasioned injuries which threatened the complainant’s life; the attack upon the complainant, from behind, was entirely unprovoked; the respondent continued to harass the complainant after the stabbing, and left the scene at a time when he knew he had stabbed the complainant who would require urgent medical attention (the respondent did not surrender to the police, but was identified from CCTV footage and other enquiries); the incident occurred in a public place where citizens should be free to move about securely; and as the victim impact statement suggests, the complainant has been left in an emotionally scarred state albeit he is fortunately not subject to residual physical disabilities apart from the scarring to his chest.”
The offender in this case was younger than the applicant; he was 18 years of age. He pleaded guilty two weeks before the trial was due to commence. He had two prior convictions which attracted fines (they were not offences of violence). He also had subsequent convictions: one related to a burglary committed a few years before the knife attack; the others for motor vehicle, wilful damage and domestic violence offences committed subsequently – which was said to bear on his prospects of rehabilitation.
The offender in Thomason had not armed himself with a knife from the outset; he had taken the steak knife from the hotel where he had dinner earlier in the evening. He was intoxicated. As de Jersey CJ observed at [11], not only is intoxication not a mitigating factor, “it rendered his carrying the knife as he did more potentially risky than were he sober”.
At first instance, the offender was sentenced to four and a half years’ imprisonment, with parole eligibility after about one-quarter of that term.
The Court (de Jersey CJ, with whom Chesterman and White JJA agreed) found that the comparability between this case and Bryan supported the conclusion that the sentence imposed was manifestly inadequate, and that a sentence of six years ought to be imposed. The Court also made a “serious violent offence” declaration, noting that the only reason that did not happen in Bryan was because no declaration had been sought. The Chief Justice said at [24]-[25]:
“This passage from Bryan (para 6) bears repetition:
‘By part 9A introduced into the Penalties and Sentences Act in 1997, the legislature clearly signalled a hardened intolerance of serious violent offending which sentencing courts must be astute to acknowledge and respect. In cases like this one, deterrence, punishment and community denunciation (s 9(1)(a), (c) and (d) of the Penalties and Sentences Act) will ordinarily assume much greater significance than the personal circumstances of an offender. A declaration would have been warranted.’
The only reason a declaration was not added on appeal in Bryan was that it had not been and was not sought. Here it was, both before the sentencing Judge and on appeal. Bryan clearly expresses that in such a situation, the declaration not having been made below, it should now be added.”13
A sentence of six years’ imprisonment with a “serious violent offence” declaration was held not to be manifestly excessive in the next comparable case relied on, R v Sellies-Cullen [2023] QCA 247. The offender in this case was convicted on his pleas of guilty to one count of armed robbery, one count of grievous bodily harm and possession of a knife in a public place. The victim was a 41 year old man who was homeless and had all of his possessions in a backpack. The victim came across the offender who was in a group with other young people; they taunted and threatened him, and he walked away. The offender then separated from the group and followed the victim. He confronted the victim and demanded his backpack, whilst threatening him with a large knife. The victim tried to run away. The offender chased him and grabbed his backpack, resulting in a struggle. The offender was still holding the knife and swung it repeatedly at the victim, striking him twice in vulnerable areas (the neck and abdomen). The offender stole the backpack and ran away.
The offender in this case was also younger than the applicant, 18 at the time of the offence. He had one prior conviction for possession of a knife in a public place. The offender had a history of drug abuse from a young age. His ongoing drug abuse was said to be a contributing factor to the commission of the offences and remained unaddressed at the time of sentence. He presented with a moderate risk of reoffending and was described as having a “real issue with anger control”.
On the offender’s appeal, this Court found it would have been open to impose a sentence of seven years’ imprisonment with no declaration, but in the circumstances the sentence of six years with a declaration could not be described as “unreasonable or plainly unjust”. The relevant circumstances were that:the applicant pursued the complainant after an initial confrontation and swung the knife at him repeatedly, with the result that the complainant was injured in two vulnerable areas – the neck and the abdomen;the offence took place at night and the behaviour of the applicant was persistent;there was a need to deter others from carrying knives in public places, protect the community and denounce the offender’s conduct; andthose needs outweighed the desire to see the offender rehabilitated.14
The other decision referred to by the sentencing judge was R v Free; Ex parte Attorney-General (Qld) (2020) 4 QR 80. That is not a comparable case, as far as the offence of grievous bodily harm is concerned. R v Free clarifies the principles which apply to the exercise of the discretion whether to make a “serious violent offence” declaration. As the Court said in that case at [53]:
“Where a case calls for consideration of whether to exercise the discretion to make a serious violent offence declaration, as part of the integrated process, what the sentencing court is required to do is consider all relevant circumstances, including in a case such as this the matters in ss 9(1), 9(2) and, primarily, s 9(6) Penalties and Sentences Act 1992, to determine whether there are circumstances which aggravate the offence in a way which suggests that the protection of the public, or adequate punishment, requires the offender to serve 80 per cent of the head sentence before being able to apply for parole.”15
It can be seen from the reasons of the sentencing judge (set out at paragraph [23] above) that his Honour considered the circumstances of this case aggravated the offence in a way which suggested adequate punishment required the applicant to serve 80 per cent of the head sentence before being able to apply for parole.
That conclusion is consistent with the Court of Appeal authorities just referred to. In each case, the fact that an offender – even if young, and with no or limited criminal history – has armed himself with a knife, and attacked a person, in public, for no justifiable reason, causing grievous bodily harm has been said to call for severe punishment, in order to protect the community, deter such conduct and clearly denounce it. In each of those cases, it has been expressly said that those features outweigh other factors, such as rehabilitation.
I do not accept that the factual circumstances of the present case, involving as it did some earlier context – appropriately described as petty by the sentencing judge – provides any real basis to describe this case as relevantly less serious. The applicant had armed himself with a knife from the outset, and was out in public, intoxicated to an extent which plainly diminished his ability to control both his anger and his actions while so armed, and used the knife in the context of a fight the applicant started, and which the victim had plainly lost, in a manner which caused life-threatening injury. That conduct must be denounced in the strongest terms, and deterred, in the interests of community protection, just as conduct directed at a stranger walking past must be.
Where stabbing with a knife is concerned, it is a fine line between causing grievous bodily harm and causing death. People in the community – young men in particular – need to know that if they choose to go out in public, with a knife, and risk using it when in conflict with another person – a risk which is heightened by drug and alcohol use – they will face severe punishment.
The factors favourable to the applicant in this case – his youth, lack of criminal history, early plea of guilty, remorse and sound prospects of rehabilitation – do not sufficiently distinguish him from Bryan, Thomason or Sellies-Cullen, such as to compel the conclusion of implied error. This is particularly so given the statements in each of those decisions about such personal features assuming less significance in cases of this kind.
It would have been open to the sentencing judge to impose a different sentence – a longer term of imprisonment, with no declaration – but given the importance of consistency,16 the sentence of six years with a declaration cannot be described as “unreasonable or plainly unjust”. On the contrary, the sentence reflects the application of principles established by this Court, in respect of a relevantly similar case.
See s 161B(3) of the Penalties and Sentences Act 1992 (Qld). ↩
See s 182(2) of the Corrective Services Act 2006 (Qld). ↩
See s 320 of the Criminal Code. ↩
See s 108B of the Penalties and Sentences Act, which was inserted into the Act in 2014 by the Safe Night Out Legislation Amendment Act 2014. ↩
See s 108D of the Penalties and Sentences Act. ↩
Underlining added. ↩
Underlining added. ↩
As to which, see s 9(1) of the Penalties and Sentences Act. ↩
Underlining added. ↩
Underlining added. ↩
The applicant’s written submissions at [10] refer also to his “reduced moral culpability due to his mental health issues” but this was not a relevant feature of the sentence and was not mentioned in oral submissions. ↩
House v The King (1936) 55 CLR 499 at 505. ↩
R
Aloese [2026] QCA 36
(1936) 55 CLR 499
The application for leave to appeal against sentence was refused.
The prosecutor submitted that a sentence of six to seven years’ imprisonment with a serious violent offence declaration was justified in light of the aggravating features and having regard to the comparable authorities. The aggravating features were said to be that the offending involved gratuitous violence, causing serious injury with a knife in a public place, against a vulnerable complainant who, by the time he was stabbed, had been assaulted by others in the applicant’s group and was lying on the ground. The fact that the applicant kicked the complainant, after stabbing him, was also emphasised.
For the applicant, it was submitted that a sentence of six years would be appropriate, with parole eligibility set at slightly earlier than the one third mark, reflecting his early guilty plea, young age and lack of criminal history. On behalf of the applicant, it was submitted that whilst the offending was objectively serious, it was “not entirely gratuitous because there was an earlier incident which seemed to be the reason why the complainant [PM] and the [applicant] met outside”. The fact that the applicant did not resort to using the knife “until he saw his cousin in a scuffle with the complainant and perceived him to be in trouble” was also emphasised. Counsel for the applicant sought to distinguish the applicant’s case from some of the comparable authorities relied upon by the prosecutor on this basis, particularly as far as the “serious violent offence” declaration was concerned. Counsel for the applicant said it was an important distinction that the applicant’s offending “was not wanton or gratuitous violence [against] a stranger”, there was some context, and some build up, as “horribly misguided” as the applicant’s perception of a threat towards his cousin may have been.
The incident culminating in the stabbing was, as noted above, recorded on CCTV footage. This footage was played at the sentence hearing, and the members of this Court have watched it as well. It is difficult to discern much, in terms of a chronology of individual actions, from watching the footage. It is a “dynamic” scene, as counsel for the applicant observed; chaotic may be another apt description.
The next decision is R v Thomason; Ex parte A-G (Qld) [2011] QCA 9. This was another example of alcohol-fuelled violence, in the early hours of the morning. A group of four people (two soldiers on leave and their girlfriends) were out in Townsville. As the first two in the group went past the offender, one of them gave him a “high five”. As the next two people, one of whom was the victim, went past the offender, the offender offered the same “high five” gesture. When the victim did not return the gesture and kept walking, the offender verbally abused him. The offender then ran up to the victim from behind, grabbed his shoulder and spun him around, then stabbed him twice with a “steak knife” with a 15 centimetre blade. The victim managed to punch the offender in the head four times and prised the knife from his hand, having thrown him to the ground. The victim’s group then walked off, the offender continuing to follow them for a time. The victim was taken by ambulance to hospital. He had no pulse when he first arrived. He had suffered a slash wound to the apex of the left ventricle in his heart, as well as other less serious neck wounds. The Chief Justice said at [6] that it was a serious instance of the offence of grievous bodily harm because of the combination of these features:
It may be time to consider whether the “range” of six to seven years, for convictions on pleas of guilty of offences of this kind remains appropriate; or whether the penalty to be imposed for this kind of offence should in fact be higher. Strong denunciation of and punishment for offending conduct can be achieved by a substantial head sentence, as opposed to a requirement for an offender to serve 80 per cent of a lesser term in actual custody, which diminishes the opportunity for supervision under parole post release,17 and the ability to give tangible credit for a guilty plea. This observation reinforces the conclusion already expressed, that the sentence imposed in this case was not manifestly excessive. The sentence was consistent with previous cases and reflects, as the head sentence, the lowest end of a range established fifteen years ago, for offending which remains a matter of serious concern and threat to community safety.
BRADLEY JA: I agree with Bowskill CJ.
WILSON J: I agree with Bowskill CJ.
Underlining added. ↩
See at [15]-[20]. ↩
Underlining added. ↩
R v Free at [64]. ↩
R v Free at [84] and [90]-[91]. ↩