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[2026] QCA 19
appellant. By majority, the appeal was allowed. The sentences on counts 1-6 were set aside and substituted. The majority imposed two years on count 1, cumulative on the six-year sentence for count 3; 12...
The Court of Appeal was split. The President considered the sentence lenient but not so inadequate that the appeal could succeed. The other two judges concluded that the sentence did not sufficiently reflect the respondent’s repeated violent offending, particularly the domestic violence and the life-threatening attack on a police officer. They also considered that the case warranted intervention to maintain sentencing standards and public confidence. The majority increased the total effective sentence by imposing separate cumulative terms for the domestic violence count and the remaining suspended sentence, while retaining a six-year term for the malicious-act count and setting parole eligibility after one-third of the effective sentence.
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2,346 words · generated 08/10/2026
The respondent pleaded guilty to six offences arising from events on 7 September 2024: assault occasioning bodily harm in a domestic relationship (count 1), escaping from lawful custody (count 2), malicious act with intent (count 3), and three counts of serious assault (counts 4-6). The appeal was brought by the Attorney-General under s 669A of the Criminal Code (Qld) on the basis that the sentence was manifestly inadequate ([1]).
1 cited instrument linked from this judgment.
The offending began at the respondent’s home. He repeatedly punched his partner in the head and face, causing cuts and bruising. Their 12-year-old child called police ([2], [6]). Officers told the respondent he was detained for an investigation. As officers accompanied him towards a police car, he ran away ([3]-[4]). He ran across a park, and during the ensuing pursuit struck Officer Humphrey with scissors concealed from police. The scissors’ blades broke off on impact. The wound punctured the officer’s lung, fractured a rib and caused a condition which medical evidence described as life-threatening without treatment ([4]-[6]).
The respondent also pushed one officer, punched another, and grabbed a third during the attempt to restrain him. The charged events from escaping custody through the assaults took about 90 seconds ([4]). The respondent had an extensive history including domestic violence, contraventions of domestic violence orders and serious assaults against police ([8]-[12]). He committed the index offences during the operational period of a suspended sentence of three and one-half years ([1]).
The sentencing judge imposed six years’ imprisonment for count 3, with lesser concurrent terms on the other counts. The judge ordered 180 days of the suspended sentence to be served cumulatively. The effective sentence was stated to be six years and six months, with parole eligibility after one-third ([1]). The judge’s calculation of the remaining suspended sentence was wrong: the majority identified the appropriate period as 315 days ([76], [78]).
The Court divided. Mullins P would have dismissed the Attorney-General’s appeal. Bond JA and Brown JA formed the majority, allowed it, set aside the sentences and resentenced the respondent ([55]-[58], [78]). The majority retained six years on count 3, imposed two years on count 1 to run cumulatively, imposed 12-month concurrent terms on counts 2 and 4-6, ordered 315 days of the suspended sentence to be served, and fixed parole eligibility at 21 August 2027 ([78]).
The central question for the majority was not whether a higher sentence could have been imposed. It was whether the sentence actually imposed was so inadequate as to bespeak error, and whether the Attorney-General had shown that the Court should intervene. The majority relied on the approach set out in Hili v The Queen: manifest inadequacy is a conclusion drawn from consideration of all relevant sentencing matters, not a result of simple numerical comparisons between cases ([59]).
The respondent’s criminal history was important. The majority described him as a mature, repeated offender whose history included serious domestic violence and violence against police. Earlier sentences had not deterred either pattern, and both were present in the index offending ([61]-[63]). Count 1 involved an unprovoked repeated assault on his partner, in front of their children. The events involving police included an attempt to escape, multiple assaults and the scissors attack on Officer Humphrey, who could have been killed ([62]).
The majority also noted the suspended sentence. The offending occurred during its operational period, which was relevant to the overall seriousness and the response required ([63]). It found no evidence of remorse. The early guilty plea had utilitarian value, but the majority did not treat it as proof of remorse ([64]). The respondent appeared to pose a danger to both a domestic partner and police officers with whom he interacted ([65]).
Those circumstances led the majority to consider that each aspect of the offending called for significant imprisonment to reflect denunciation, deterrence and community protection. It emphasised the public interest in protecting both domestic partners and police officers carrying out their lawful duties ([66]). The problem was not just the sentence for the stabbing viewed in isolation. If the sentencing judge was using the Nagy approach, the sentence on the principal count needed to reflect the criminality in count 1 as well as the offences against police, before being moderated for totality and the intended cumulative service of the suspended sentence ([67]).
The majority did not treat the 10-year sentences in Mulholland, Anderson and Townshend as a direct tariff. It agreed those cases did not justify a notional 10-year starting point here ([68]). Rather, it compared the seriousness of the respondent’s overall offending with the relevant cases and concluded that six years was significantly below the lowest sentence that could reflect the relevant sentencing considerations ([68]-[69]). It also referred to Braithwaite, Piper and Ma’afu, explaining why it did not regard those cases as showing that six years was sufficient in this case ([68]).
The majority then considered whether the case justified intervention, a separate question from whether the sentence was manifestly inadequate. It relied on the strong public interest in addressing domestic violence, violence against police and recidivist offending. In its view, the sentence undermined public confidence in the administration of justice ([70]-[72]). That conclusion led it to exercise its discretion to intervene despite the concern that a Crown appeal may subject a person to the distress and anxiety of being sentenced again.
The judgment did not announce a new statutory test or create a fixed sentencing range. It applied established principles governing Attorney-General sentence appeals and explained how those principles operated on these facts.
Before this decision, as stated in the reasons, an Attorney-General appeal on manifest inadequacy was subject to important limits. The appeal had to establish more than that a sentence was lenient or that another judge might have imposed a higher one. The sentence had to be so far outside an appropriate range that error could be inferred from the result. The judgment cited Everett, Hili, Lacey and Sprott for the constraints on Attorney-General appeals and the importance of avoiding inconsistency in the application of sentencing principles rather than seeking numerical equivalence ([31]). It also recognised that even a finding of manifest inadequacy did not automatically require resentencing: a residual discretion remained, and the Attorney-General had to show that intervention was justified ([32], [70]-[72]).
The judgment’s contribution is its application of those principles to a combination of serious domestic violence, a dangerous attack on a police officer, related assaults, a recidivist history and offending during a suspended sentence. The majority found that the aggregate effect of those circumstances made this sentence manifestly inadequate and made intervention appropriate ([61]-[72]).
The dissent illustrates that the test remains evaluative. Mullins P accepted the sentence was lenient and that a higher sentence was open, but considered it remained within a sound exercise of the sentencing discretion. She considered that the authorities relied on by the appellant were materially more serious and that the six-year sentence was at the lower end, but not outside the range, of a sound exercise ([48]-[54]). The majority reached a different conclusion from its assessment of the cumulative seriousness and public interest.
The resentencing also shows how the majority treated structure and totality in this case. It gave count 1 its own sentence and imposed a separate sentence for count 3 to reflect counts 2-6. It then moderated the count 1 and count 3 terms to avoid a crushing sentence, while requiring the remaining suspended-sentence period to be served ([74]-[77]). These are the majority’s reasons for its particular orders, not a universal formula for sentencing similar offences.
At [59], the majority quoted Hili: “Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle”. In plain English, an appellate court does not increase a sentence simply because it would have imposed more. It must be satisfied that the outcome itself indicates a legal error in the sentencing exercise.
At [67], the majority said that the sentence for count 3 needed to be increased to reflect both the serious domestic violence in count 1 and the criminality of counts 3-6, then moderated for totality and the cumulative suspended sentence. In plain English, the sentence for the principal offence had to account for the other offending that was being sentenced, but the overall result still had to be assessed as a whole.
At [68], the majority accepted that the benchmark cases did not warrant a notional 10-year starting point. It nonetheless considered the six-year term significantly below the lowest sentence that could reflect the relevant circumstances. In plain English, the majority rejected a mechanical comparison with higher sentences but still concluded that the sentence in this case was too low.
At [72], the majority said the sentence undermined public confidence in the administration of justice. It connected that conclusion to the public interest in protecting domestic partners and police officers and responding to recidivist offending. This was the majority’s stated reason for finding that intervention was appropriate, not merely for finding the sentence inadequate.
At [77]-[78], the majority explained and ordered a sentence structure that accounted for the guilty plea and other mitigating circumstances through parole eligibility after one-third of the effective sentence. It also left the 327-day presentence custody declaration unchanged and varied the suspended-sentence period from 180 to 315 days.
The judgment is most relevant to Attorney-General sentence appeals alleging manifest inadequacy where the argument is that a sentence, viewed in the context of all the relevant circumstances, falls so far below an appropriate response that a misapplication of principle must be inferred. It is not authority that a particular offence or combination of offences automatically requires the sentence imposed here.
Factors the majority treated as significant included a lengthy history of serious domestic violence and violence against police; previous sentences that had not deterred similar offending; a serious assault on a partner; a concealed weapon used against an officer during an attempt to escape; an injury capable of causing death; multiple additional assaults; and offending during the operational period of a suspended sentence ([61]-[66]). The majority considered the combination, rather than any single fact in isolation, to be important.
The judgment also addresses cases in which the sentencing judge uses an approach under which a sentence for the most serious count reflects multiple offences. The majority’s analysis indicates that, on these facts, the serious domestic violence count could not be left out of the overall criminality reflected in the principal sentence ([67]). It also shows the importance of addressing totality, guilty pleas, the suspended sentence and parole eligibility within the final structure ([74]-[78]).
The precedent does not make numerical comparison decisive. The majority distinguished the cited cases because they involved more serious features, including firearms, sustained conduct or exceptionally severe injuries ([41]-[47], [68]). It expressly rejected using them to support numerical equivalence at [49]. A future case would therefore require attention to the specific offending, injury, history, mitigation and sentence structure rather than simply matching the result in one of the cited authorities.
The supplied judgment contains no decisions after this judgment and therefore provides no evidence of how later courts have treated it. It was delivered on 17 February 2026, and the text supplied identifies no later judicial consideration.
Within its own reasoning, the Court discussed and applied earlier authorities. Hili supplied the account of when appellate intervention for manifest inadequacy is warranted ([59]). The majority cited TBH and Yaroslavceff on the additional requirement that a Crown appeal fall within the rare category justifying intervention ([70]-[72]). It applied the Nagy approach to how the principal sentence could reflect the criminality of multiple offences ([67]).
The Court also explained why Mulholland, Anderson and Townshend did not determine the appropriate sentence in this case. The majority accepted those authorities involved more serious examples and did not use them to establish a numerical starting point ([68]-[69]). That treatment is significant for understanding this judgment’s own method, but the supplied text cannot establish whether later courts have followed, distinguished or limited its reasoning.
The judgment leaves the boundaries of manifest inadequacy dependent on a fact-sensitive evaluation. The majority and the President agreed on the governing principles but differed about whether the sentence crossed the threshold. The difference demonstrates that the threshold is not resolved by an arithmetic formula or by identifying one comparator case ([48]-[54], [59], [68]-[69]).
The judgment does not set a general sentence for a malicious act with intent committed against a police officer, nor a fixed increase for domestic violence, prior convictions or a suspended sentence. The majority rejected the suggested notional 10-year starting point and grounded its conclusion in the combined circumstances ([68]-[69]). How those considerations weigh in other cases remains a matter for application of the sentencing principles to the facts of each case.
The interaction between a sentence under the Nagy approach and a separately sentenced domestic violence count may also require careful attention in future cases. Here, the majority considered the count 1 offending needed separate recognition and ordered a cumulative term, while moderating sentences for totality ([67], [74]-[77]). The judgment does not state that this structure must be used in every case involving multiple counts.
Finally, the judgment records a specific procedural point about correcting the suspended-sentence calculation. Mullins P stated that the error could be corrected if the appeal otherwise succeeded, but that the Court lacked jurisdiction under s 188(1) of the Penalties and Sentences Act 1992 (Qld) to correct it if the appeal failed ([53]). Because the majority allowed the appeal and varied the period to 315 days, the judgment does not resolve how that correction would have proceeded in a case where the appeal was dismissed.
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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 DCS; Ex parte Attorney-General (Qld) [2026] QCA 19
PARTIES: R / v / DCS / (respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)
FILE NO/S: CA No 207 of 2025 / DC No 20 of 2025
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT: District Court at Roma – Date of Sentence: 31 July 2025 (Lynch KC DCJ)
DELIVERED ON: 17 February 2026
DELIVERED AT: Brisbane
HEARING DATE: 5 November 2025
JUDGES: Mullins P, Bond JA, Brown JA
ORDERS: Offence / Sentence / Count 1: Assault occasioning bodily harm (domestic violence offence) / Two years’ imprisonment, to be served cumulatively on the sentence imposed on count 3 / Count 2: Escaping from lawful custody / 12 months imprisonment, to be served concurrently with the sentence imposed on count 3 / Count 3: Malicious act with intent / Six years’ imprisonment / Count 4: Serious assault / 12 months imprisonment, to be served concurrently with the sentence imposed on count 3 / Count 5: Serious assault / 12 months imprisonment, to be served concurrently with the sentence imposed on count 3 / Count 6: Serious assault / 12 months imprisonment, to be served concurrently with the sentence imposed on count 3 / but are otherwise confirmed.
Offence Sentence
Count 1: Assault occasioning bodily harm (domestic violence offence) Two years’ imprisonment, to be served cumulatively on the sentence imposed on count 3
Count 2: Escaping from lawful custody 12 months imprisonment, to be served concurrently with the sentence imposed on count 3
Count 3: Malicious act with intent Six years’ imprisonment
Count 4: Serious assault 12 months imprisonment, to be served concurrently with the sentence imposed on count 3
Count 5: Serious assault 12 months imprisonment, to be served concurrently with the sentence imposed on count 3
Count 6: Serious assault 12 months imprisonment, to be served concurrently with the sentence imposed on count 3
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent pleaded guilty to assault occasioning bodily harm (domestic violence offence) (count 1), escaping from lawful custody (count 2), malicious act with intent (count 3) and three counts of serious assault (counts 4-6) – where the respondent seriously assaulted his partner and resisted cooperating with police officers – where the respondent chose to flee – where the respondent must have been contemplating his non-cooperation with the police as he had a pair of scissors in his pocket prior to fleeing the house – where the respondent chose to run and then used the scissors to strike the police officer and caused a life-threatening injury – where the respondent was 35 years old at the time of offending and had an extensive criminal history, including offences of violence, contraventions of domestic violence orders and serious assaults of police officers – where the respondent committed the offences during the operational period of a suspended term of imprisonment of three and one-half years – where the respondent was sentenced to six years’ imprisonment on count 3 and lesser concurrent sentences for each of the other counts – where a presentence custody declaration was made in respect of 327 days which was declared as time already served under the sentences – where the respondent was ordered to serve 180 days of the suspended sentence to be served cumulatively on the other sentences imposed – where the date for eligibility for parole was fixed after the respondent had served one-third of the sentence – whether the sentence is manifestly inadequate / Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49, cited / Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45, cited / Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited / R v Anderson [2014] QCA 134, considered / R v Braithwaite [2004] QCA 82, considered / R v Ma’afu [2016] QCA 67, cited / R v Mulholland [2001] QCA 480, considered / R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited / R v Piper [2015] QCA 129, cited / R v Sprott; Ex parte Attorney-General (Qld) [2019] QCA 116, considered / R v TBH; Ex parte Attorney-General (Qld) [2025] QCA 190, cited / R v Townshend (2021) 292 A Crim R 26; [2021] QCA 106, considered / R v Yaroslavceff [2022] SASCA 123, cited
COUNSEL: N W Crane for the appellant / C W Wallis, with H Robertson, for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Legal Aid Queensland for the respondent
Circumstances of the offending
The sentencing proceeded on an agreed statement of facts. All offences were committed on 7 September 2024. The respondent had been in an on again, off again relationship with the complainant for count 1 (the partner) since they were 14 years old. After being separated for some time, the respondent in July 2024 moved back in with the partner and their two children aged 9 years and 12 years. On the day of the offences, the partner awoke around 6.50 am in her bedroom to the respondent looking through her mobile phone. She got out of bed and went to the bathroom. When she returned to the bedroom, she accidentally brushed against the respondent who swung his arm out and told her to “fuck off”. The respondent stood up from the bed and started to punch the partner repeatedly with both fists. The partner screamed out to him to stop hitting her. The partner started to bleed from her face and head which soaked into the pillow on which she was laying and splattered on the bedsheet and wall (count 1). After the respondent stopped attacking her, the partner asked if she could go to the kitchen and get a towel for the blood. She left the room and saw their 12 year old child was calling the police. She returned to the bedroom. The police then arrived.
Officers Ward and Humphrey spoke with the partner on the front porch before speaking with the respondent alone in the front yard. Officer Ward told the respondent he was detained for the purpose of investigating domestic violence. The respondent said that he was not and told Officer Ward not to touch him. The respondent told police he was going back upstairs into his house. Officers Ward and Humphrey radioed for assistance.
Officers Stonier and Velasquez arrived. All four officers accompanied the respondent to a police car where he was told to remain while they investigated the incident. As they approached the car, the respondent ran away (count 2). The body worn camera footage (exhibit 8) captured the respondent’s escape and some of what then ensued. The respondent ran across the street into a park. Officer Ward chased the respondent across the park, yelling at him to stop. Officer Humphrey cut across the park attempting to close the distance to the respondent. The respondent then ran straight at Officer Humphrey. As they came into contact, the respondent swung his right arm around behind Officer Humphrey and stabbed him to the left lower ribs with a pair of scissors which he had hidden from police (count 3). The respondent stabbed Officer Humphrey with such force the blades of the scissors broke off from the handles and fell to the ground. Officer Humphrey thought he had only been punched by the respondent and continued to pursue the respondent back towards the respondent’s house. As the respondent approached the boundary of the park, the other officers attempted to stop him. The respondent pushed Officer Stonier out of the way (count 4). The statement of facts recited that the respondent was subsequently tackled by Officer Velasquez who dislocated his shoulder in the impact but the injury to that officer’s shoulder was not a circumstance of aggravation in respect of any count on the indictment. As the officers tried to restrain the respondent, he punched Officer Velasquez in the face and tore open the front of his shirt (count 5) and reached out and grabbed Officer Ward by the vest and pants trying to pull him down (count 6). When Officer Stonier threatened to pepper spray the respondent, he calmed enough for the officers to place him in handcuffs. According to the body worn camera footage, the incidents that were charged as counts 2-6 took place over a period of about 90 seconds.
Respondent’s antecedents
The respondent was 35 years old at the date of the offences. He has an extensive criminal history that is marked by many offences of violence, contraventions of domestic violence orders and serious assaults of police officers. All his offending was dealt with in the Magistrates Court until 22 May 2018 when he pleaded guilty in the District Court to one count of burglary with circumstances of aggravation, one count of assault occasioning bodily harm, one count of stealing, one count of serious assault and one summary charge of assault or obstruct police. This series of offences was committed on 22 July 2017 when he attended at his former partner’s house, kicked in the front door and entered and punched her in the head and face. He stole $650 cash when he left the house of which about half was returned. The complainant suffered a significant injury in the nature of lacerations to her face and contusions on her left forehead and upper right eyelid. She received a total of 17 stitches to her forehead, right eyebrow and lower lip. When police located the respondent, he threatened them with an electric grinder which resulted in the count of serious assault. He was sentenced to imprisonment for two years and six months for the assault occasioning bodily harm, lesser concurrent sentences for the other indictable offences and convicted and not further punished for the summary charge (the 2018 sentences). He had been sentenced in the Magistrates Court on 9 February 2017 to 15 months’ imprisonment for contravention of domestic violence order (aggravated offence) for which he was on parole when he committed the offences the subject of the 2018 sentences. He was returned to custody and completed the sentence for which he had been on parole and had a further 52 days in presentence custody that was not the subject of any presentence custody declaration but was taken into account when the 2018 sentences were imposed.
The respondent was dealt with in the District Court on 30 November 2022 for the next series of serious offences committed by him (the 2022 sentences). The first offence of choking suffocation strangulation domestic relationship (the choking offence) was committed on 22 December 2019 which was 19 months after the 2018 sentences were imposed and while the respondent was on parole in respect of that sentence. He argued with his then partner. He ran at her, she punched him in the jaw, he grabbed her by the neck and lifted her into the air and squeezed her neck. She could not breathe but did not lose consciousness. He dropped her on the road. She had tenderness and bruising to the left side of the mandible and multiple abrasions over the left side of the neck. The respondent and that partner broke up in January 2021, a protection order was made in March 2021, and they reconciled in April 2021 and were living in a motel. In May 2021, he argued with his partner. She was walking out of the room, he tried to pull her back, he kicked her in the chest and she hit the ground. He slashed a pair of scissors across her lower neck which caused a small cut. This conduct breached the domestic violence order.
Submissions as to the appropriate sentence before the sentencing judge
The selection of an appropriate sentence is ultimately the decision of the sentencing judge: Barbaro v The Queen (2014) 253 CLR 58 at [47]. The sentencing judge is not bound by any sentencing submission made by a party as to the appropriate sentence. Where there is an appeal by the Attorney-General on the ground that the sentence is manifestly inadequate, the sentencing submission made by the prosecutor before the sentencing judge does not determine the outcome of the appeal but it is also not irrelevant: R v Riseley; Ex parte Attorney-General (Qld) [2009] QCA 285 at [37].
The prosecutor’s submission was that, adopting the approach in R v Nagy [2004] 1 Qd R 63 at [39], the head sentence for the offending should be in the vicinity of imprisonment for six to seven years with the remainder of the suspended sentence activated which would result in an overall head sentence (on the basis of six years’ imprisonment) in the vicinity of eight years (which submission was made before allowing for the notional credit of 14 months) with the parole eligibility date set at a date prior to the halfway point of the overall sentence. The prosecutor did not submit that it was an appropriate case for a declaration that the respondent was convicted of a serious violent offence in respect of the malicious act with intent.
It was during the respondent’s counsel’s submissions before the sentencing judge that the information was obtained by the prosecutor that the respondent had served a period of 14 months on being returned to prison for a breach of parole on 5 March 2023. It was the sentencing judge who raised the unfairness of not giving the respondent credit for that time in custody for the choking offence that was the subject of the suspended term of imprisonment.
The respondent’s counsel before the sentencing judge had submitted that it was open to impose a head sentence of six and one-half years with eligibility for parole at just over the one-third mark and the remaining component of the suspended sentence to be activated and served concurrently.
Sentencing remarks
After outlining the details of the offending and the respondent’s antecedents, the sentencing remarks included the following. The assault upon the respondent’s partner was a serious one that resulted in injury to her and in her bleeding. The offending (against the police officers) was very serious. The respondent resisted the efforts of the police officers who were respectful of him and gave him the opportunity to cooperate and go to the police vehicle without being handcuffed. Instead, the respondent chose to flee and assaulted those officers in a very serious way. The victim impact statements of the two officers explain the physical impact of what occurred and the psychological impact that it had upon those officers. The impact of the offending upon the victims was serious and adds to the overall seriousness of what occurred.
There was a period of 457 days which the respondent served in custody but did not count against the suspended sentence. (The judge incorrectly calculated the period served in respect of these sentences as 457 days when it was more like 430 days.) It would be unjust to order that the whole of the remaining period of the suspended imprisonment of 745 days be served because the period spent in custody when the parole was suspended could not be declared as time served against the choking sentence for the choking offence. The parties agreed that left a period of 188 days as the unserved portion of the suspended sentence for which the respondent was liable to be ordered to serve. (If the calculation that the sentencing judge did had been correctly done, it would have resulted in a difference of 288 days. If the calculation that was done was 745 days less 430 days, the result would have been 315 days.)
The respondent must have been contemplating his non-cooperation with the police during the period that preceded his fleeing his house as he had a pair of scissors in his pocket. He chose to run and then use the scissors to strike the police officer and cause a significant life-threatening injury. It was not certain when the respondent formed the intention to use the scissors to strike the officer but it was a very serious example of the offence – striking the police officer causing grievous bodily harm for the purpose of aiding his escape from lawful custody. The respondent had a concerning history for committing offences of violence.
The sentencing judge recited the respondent’s counsel’s submissions about the respondent’s instruction that he had been awaiting some assessment in respect of what the respondent asserted was an earlier diagnosis of bipolar disorder for which he said he had been previously medicated. The sentencing judge also recited the submissions that the respondent was being treated for his drug addiction whilst in custody by receiving a monthly injection and he was affected by drugs at the time of the subject offences. (There was no evidence put before the sentencing judge that any mental health condition contributed to the offending by the respondent or from which such an inference could be drawn. Intoxication at the time of the offending did not reduce the criminality of the offending. Neither of these matters merely repeated from the respondent’s submissions was used in an impermissible way by the sentencing judge or has any relevance on the appeal.)
Appellant’s submissions
There are three primary contentions for why the sentence ultimately imposed was manifestly inadequate:the notional starting point for count 3 was too low;the sentencing judge did not properly reflect the offending in count 1 in the sentence imposed for count 3 to reflect the criminality for all the offending committed on 7 September 2024;there was a failure to consider whether there were features relevant for imposing a greater period of actual custody than the customary or conventional one-third of the period of imprisonment.
Each of those contentions is not relied on as constituting a discrete error but as an explanation for why the sentencing judge’s ultimate sentence was manifestly inadequate.
The appellant submits that the sentencing required due recognition to be given to the aggravating feature that the victim for count 3 was a police officer and the offence was committed to stop the officer from doing his duty: R v Patrick (a pseudonym); Ex parte Attorney-General (2020) 3 QR 578 at [34]. It is emphasised in Patrick (at [30]) that there is a public interest in the maintenance of an effective police force, the protection of police officers from harm in the execution of their duties, and that offenders are punished when they harm police. The appellant relies on authorities which are said to be comparable for sentencing for an offence against s 317 of the Code committed against a police officer, including R v Mulholland [2001] QCA 480, R v Anderson [2014] QCA 134 and R v Townshend (2021) 292 A Crim R 26.
The appellant relies on the observations of Sofronoff P (with whom Fraser and McMurdo JJA agreed) in Townshend at [40]:
“As this analysis shows, only Mulholland and Anderson are of any assistance. They were not cases in which an offender used a car as a weapon but they were both bad cases involving deliberate attempts by an offender to injure police with intent to evade arrest. In neither case did the offender succeed in injuring his intended victim. Mulholland was a guilty plea and Anderson was a conviction after a trial but in the circumstances of this case nothing turns on that. Those cases show that a sentence over 10 years is well within the scope of the proper exercise of the sentencing discretion for an offence involving an offender who, in order to escape lawful arrest, tries to inflict injury on police. This must be a fortiori when the offender actually inflicts grievous bodily harm upon a police officer while attempting to evade arrest. Crossman reinforces this conclusion.”
The appellant concedes that this observation that a sentence over 10 years would be within the scope of the proper exercise of the sentencing discretion for an offender who, in order to escape arrest, inflicts grievous bodily harm on a police officer does not exclude that a sentence below 10 years could be appropriate in a particular case. The appellant submits, however, that Mulholland, Anderson and Townshend have unifying features with the respondent’s case in that they all involved mature offenders engaged in criminal conduct, an intention to evade arrest for that conduct, either serious injury caused to the police officer or a high risk of serious injury, and each offender had a substantial criminal history or, in the case of Mr Townshend, a traffic history that implied he represented a continuing danger to the community.
The appellant’s ultimate position was that the respondent should be sentenced to 10 years’ imprisonment on count 3 with concurrent terms of imprisonment for the remaining offences. The appellant’s alternative position is that, if the Court considers the increase in penalty brings the sentence to below 10 years, the respondent should be required to serve 80 per cent or, at least, one-half of the term, in actual custody.
Respondent’s submissions
The respondent accepts that the effective sentence may be viewed as lenient in all the circumstances but submits that it was not so lenient as to be manifestly inadequate. The respondent also concedes that the sentencing judge made an error in calculating that six months of the suspended term of imprisonment imposed on 30 November 2022 should be activated and served cumulatively, when the period that was outstanding (after deducting the notional period of 14 months that was served on account of the sentences imposed at the same time as the suspended term of imprisonment) was more like 10 months. If that were the only error, it would not be appropriate on the appeal by the appellant to correct that error. Any correction should be done on a reopening under s 188 of the Act.
The head sentence imposed for count 3 was not materially dissimilar to that sought by the prosecutor before the sentencing judge. The authorities now relied on by the appellant to seek an increase in the respondent’s sentence are inapplicable to the circumstances of the respondent’s case. The respondent submits that R v Piper [2015] QCA 129 and R v Ma’afu [2016] QCA 67 are instructive examples of sentencing for the offence of malicious act with intent, even though the complainants were not police officers. In each case, the offender used a bladed weapon to strike purposefully without provocation at the complainant causing grievous bodily harm to the complainant who suffered injuries of at least similar seriousness to those inflicted by the respondent on Officer Humphrey. The offender either had no or an irrelevant criminal history and in each case the head sentence of seven years’ imprisonment was not disturbed on an application for leave to appeal.
Approach required on an appeal against sentence by the Attorney-General
“It is only when the Court of Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in exercising the discretion to resentence. Disagreement about the adequacy of the sentence is insufficient because sentencing is too inexact a process to make mere disagreement a sufficient criterion. Intervention is only warranted when the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle.” (footnotes omitted)
Comparable authorities
The gravamen of the offence under s 317(1) of the Code is that the offender, with intent to act in one of the ways specified in any of paragraphs (a) to (d), does any of the acts specified in paragraphs (e) to (k). The outcome of each act usually has a significant consequence for the victim of the offence. The seriousness of an offence under s 317(1) is indicated by the maximum penalty of life imprisonment.
Even though the sentencing judge found the authorities to which the parties referred of utility as yardsticks, they were not truly comparable as they were examples of sentences imposed where the most serious offence had a maximum penalty of 14 years’ imprisonment.
The offender in Braithwaite was 30 years old when he committed the offences of unlawful use of a motor vehicle, arson of that motor vehicle, grievous bodily harm and assault occasioning bodily harm. The most serious offence was the grievous bodily harm for which he was sentenced to six years’ imprisonment. The maximum penalty for the offence of grievous bodily harm was 14 years’ imprisonment. He was sentenced to concurrent terms of three years’ imprisonment on each other count. He was recommended to be considered for release on parole after serving two and one-half years in custody. The police were called when the offender and a female accomplice were splashing petrol around the car which they had used without the owner’s permission. They set the car alight. Police officers located the offender and his accomplice in a nearby yard. They were being escorted to the police car but were not handcuffed. The offender punched a male officer with a clenched fist heavily in the face, knocking him both backwards and briefly unconscious. The accomplice called out “smash the pigs” and the offender then punched the female officer several times on the head and face. The male police officer suffered complex fractures to the face including both cheekbones, his nasal bone and both upper jaw bones and had surgery under general anaesthetic. He underwent further surgery three months later. He had four metal plates and 15 screws inserted in his face. The female police officer experienced embarrassment and felt she was ineffective because of the vicious assault on her male partner. The offender had an extensive criminal history for dishonesty, use of motor vehicles, other property offences and drug offences but no history of violent offending. He was under the influence of drugs when he committed the offences. He pleaded guilty to the offences. The sentence of six years’ imprisonment reflected the overall criminality of his offending. His application for leave to appeal on the ground the sentence was manifestly excessive was unsuccessful.
In Devlyn, the female offender who was 24 years old when she offended pleaded guilty to four counts committed against three police officers who had come to the aid of paramedics. When the first police officer had arrested the offender for public nuisance, she struggled, as she was being put into a police car, and squeezed his testicles causing severe pain and discomfort that resulted in the charge of grievous bodily harm. He subsequently required surgery and had a protracted recovery. Shortly after, when the same police officer was assisting two others to deal with the offender, she kicked that police officer to the inner part of his right thigh which resulted in a serious assault charge. She then kicked another police officer in the groin that resulted in another serious assault charge. She stomped with great force on a female police officer’s foot and then twisted that police officer’s breast. That resulted in another serious assault charge. The maximum penalty for the grievous bodily harm count which was the most serious charge was 14 years’ imprisonment. The maximum for each serious assault charge was seven years’ imprisonment. The offender’s application for leave to appeal against the sentence of four years’ imprisonment for the offence of grievous bodily harm and lesser concurrent sentences for the serious assault charges was unsuccessful.
Was the sentence manifestly inadequate?
The issue for this Court is therefore whether the sentence imposed for count 3 which was to reflect the criminality for all the offences committed on 7 September 2024 was manifestly inadequate. As conceded by the respondent’s counsel, the sentence imposed on the respondent was lenient. It was lower than it could have been. The issue can be narrowed as to whether the sentence was manifestly inadequate rather than lenient or inadequate.
The appellant’s submission that consistency in sentencing with the three comparable authorities now relied upon by the appellant requires the respondent’s sentence to be increased is misconceived. As the above analysis of Mulholland, Anderson and Townshend shows, each is a much more serious example of the offence of malicious act with intent committed against a police officer than the respondent’s offending. The similarity in the offending between the respondent’s case and those three authorities is superficial. There is no justification for using those authorities to support numeral equivalence for the sentence imposed on the respondent for count 3.
It was appropriate for the sentencing judge to use the Nagy approach. That required the sentence for count 3 as the most serious offence to reflect the criminality for all the offending. Counts 2-6 were all committed within the period of about 90 seconds. The offending for count 2 overlaps with count 3. Counts 4 to 6 involved relatively minor injuries to the police officers who were the complainants for those counts. It was appropriate for the sentence for count 3 to cover all the offending committed within that space of 90 seconds. Count 1 was a separate offence that immediately preceded the offending that constituted counts 2-6 and warranted some component of the sentence for count 3 to cover that additional offending.
The most aggravating aspect of count 1 was the respondent’s previous convictions and sentences of imprisonment for domestic violence offences committed against his partners that had not deterred the respondent from punching the complainant for count 1 repeatedly without any provocation. Fortunately for the complainant (and the respondent) the conduct that constituted count 1 was less serious than for the respondent’s previous like offending and the complainant sustained minor injuries. The respondent had also ceased punching his partner before the police arrived and without knowing they had been called.
The sentencing judge also recognised that there was a totality issue, as a result of ordering the activated portion of six months of the suspended term of imprisonment for the choking offence to be served cumulatively on the sentence imposed for count 3. There was also the need to reflect the early guilty pleas. The sentencing judge expressly recognised that the sentence must offer a genuine level of community protection (which reflected the important public interest in the protection of police officers from harm in carrying out their duties, as identified in at [30]). The sentencing judge made express reference to the constraints on sentencing the respondent because of the application of s 9(3) of the Act and the purposes of sentencing to reflect the community’s disapproval of the respondent’s conduct and general and specific deterrence.
Order
The order that should be made is: Appeal dismissed.
BOND JA AND BROWN JA: We have had the advantage of reading in draft the reasons for judgment of the President and respectfully adopt her Honour’s recitation of the facts of the offending, of the respondent’s antecedents and of the salient features of the cases said by the parties to be relevantly comparative.
We respectfully differ from her Honour in that our consideration of those matters leads us to conclude that the degree of leniency afforded the respondent by the sentencing judge was such as to bespeak error. Although we would acknowledge the need to have regard to the principle of totality and also to give the respondent some benefit for his guilty plea, the circumstances did not call for any significant lenience to be shown to the respondent, indeed the contrary was the case. Although no error of principle could be identified, we infer that one must have been made. We also conclude that this Court’s intervention is necessary to establish and to maintain adequate standards of sentence and to ensure that public confidence in the administration of justice is maintained.
For reasons which follow, we conclude that the appeal should be allowed. The total effective sentence of 6 years and 180 days with parole eligibility after one-third of the total effective sentence should be set aside and the respondent resentenced to a total effective sentence of 8 years and 315 days imprisonment with the date for parole eligibility fixed at 21 August 2027. That is the date which reflects the respondent being required to serve one-third of the total effective sentence.
The effective sentence was manifestly inadequate
“The single ground of appeal advanced by the Director in each appeal to the Court of Criminal Appeal was that the sentences imposed at first instance were manifestly inadequate. That is, the error which the Director asserted that the sentencing judge had made was of the last kind mentioned in House v The King. By asserting manifest inadequacy, the Director alleged that the result embodied in the sentencing judge’s orders was ‘unreasonable or plainly unjust’. The Director did not allege that any specific error could be identified (as would be the case if the sentencing judge were said to have acted upon wrong principle, allowed extraneous or irrelevant matters to guide or affect her, mistaken the facts or not taken into account some material considerations). Rather, the Director asserted that it was to be inferred from the result that there was ‘a failure properly to exercise the discretion which the law reposes in the court of first instance’.
As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that ‘the sentence imposed in these matters is so far outside the range of sentences available that there must have been error’.
The Court of Criminal Appeal also said that ‘manifest error is fundamentally intuitive’. That is not right. No doubt, as the Court went on to say, manifest error ‘arises because the sentence imposed is out of the range of sentences that could have been imposed and therefore there must have been error, even though it is impossible to identify it’. But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.”
In the present case the key features of the circumstances of the offending and the personal circumstances of the respondent were the following.
First, the respondent was a mature offender with a lengthy criminal history in which he had been sentenced to imprisonment many times. For present purposes, the first important aspect of that history was that it revealed the respondent as a recidivist serious domestic violence offender. His criminal history included multiple contraventions of domestic violence orders and multiple sentences for serious domestic violence. The second important aspect of the respondent’s criminal history was that it revealed the respondent as a violent offender, including against police officers.
Second, the respondent had evidently not been deterred by previous sentences imposed for either aspect of his previous offending behaviour because each aspect was reflected in the index offending:As to domestic violence, the respondent’s assault against his female domestic partner which constituted count 1 was a serious assault without any provocation and which was conducted in front of their children. He hit her face and head repeatedly with both fists and for no apparent reason. He left her bleeding and the bed clothes and wall spattered with blood.As to his interaction with police, the body worn camera footage revealed that notwithstanding that the investigating police behaved in a calm and respectful, indeed exemplary, manner towards him, he responded with belligerence. Despite having ample opportunity to cooperate with police without offending further, he proceeded to attempt to escape and, in the process, to commit multiple assaults and a malicious act with intent against police. Although the offending in counts 2 to 6 happened over a short period, it was very serious. Officer Humphrey could have been killed.
Third, the offending occurred during the operational period of a suspended sentence for domestic violence offences.
Fourth, there was no evidence of remorse. The early plea of guilty could not be so regarded. At best it could be said to have utilitarian value in saving the community the cost of a trial, and the victims from the stress of having to give evidence.
Fifth, the respondent appeared to pose a danger both to any domestic partner he might have and to any police officer with whom he interacted.
In our view, each aspect of the respondent’s offending called for a significant term of imprisonment to recognise community denunciation, the need for personal and general deterrence and community protection. There is a strong community interest in both the protection of domestic partners against violence and the protection of police from harm in the performance of their lawful duties.
It seems to us that the President is correct to suggest that sentencing judge was seeking to follow the approach in . But if that course was to be followed, whatever might be an appropriate sentence for count 3 needed –to be increased to reflect the criminality involved in both (1) the serious domestic violence offending in count 1 and (2) the other (and not insignificant) criminality involved in counts 3, 4, 5 and 6; andthen to be moderated for totality purposes including to take into account the intended cumulation of the activated part of the suspended sentence.
This Court should intervene
Our conclusion that error has been demonstrated is insufficient to justify this Court’s intervention. The Attorney-General must also demonstrate that the case falls within the rare category of cases in which it is appropriate for this Court to exercise its discretion to intervene. The relevant legal principles were recently summarised by this Court in R v TBH; Ex parte Attorney-General (Qld).9
We venture to repeat the citation there made of observations made by Doyle JA in the South Australian decision of R v Yaroslavceff:10
“In short, manifest inadequacy in the sentence imposed below does not, of itself, justify permission to appeal. The circumstances in which permission to appeal will be granted on a Crown appeal are often said to be confined to rare and exceptional cases. The rationale for confining permission to such cases is the concern with double jeopardy; that is, the concern not to unnecessarily subject a defendant to the distress and anxiety of being twice vexed as a result of facing resentencing by an appeal court.
The rare and exceptional case is one where allowing the appeal is desirable in order to address an error of principle, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or to establish and maintain adequate standards of sentence. It also extends to correcting a sentence which is so inadequate that it bespeaks error of principle, or would undermine public confidence in the administration of justice.
The phrase ‘rare and exceptional’ does not direct attention to the number or proportion of Crown appeals in which the appellate court’s intervention might be appropriate, for these are matters which depend upon the sentencing practices of first instances judges, and the number and nature of the appeals brought by the Director. Rather, it requires a qualitative assessment. It directs attention to the nature of the error that is required to justify intervention. In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal.
The line between a sentence which is ‘merely’ manifestly inadequate, and a sentence which is so far below the appropriate standard as to warrant a grant of permission in a Crown appeal is not a bright one. It involves questions of degree, and, in a case such as the present, requires a balancing of the public interest in maintaining appropriate sentencing standards against the hardship to a defendant associated with being twice vexed.”
Resentencing the respondent
We would structure the sentence in the following way.
Separate recognition should be given to the two aspects of the respondent’s offending behaviour which we have identified and to the question of how the respondent should be dealt with under s 147 of the Penalties and Sentences Act 1992 (Qld) for the suspended sentence.
A sentence should be imposed for count 1. A separate sentence should be imposed for count 3 to reflect the criminality involved in counts 2 to 6, with separate lesser concurrent sentences imposed for counts 2, 4, 5 and 6. The respondent should be required to serve the remaining period of the suspended sentence. Each of those three sentences should be cumulated.
Totality considerations and the need to avoid a crushing sentence should be accounted for by moderating downwards the sentences which might otherwise be imposed for counts 1 and 3. In this regard, we would impose a sentence of two years’ imprisonment for count 1, rather than the 3-year sentence which we would have imposed if we were sentencing for count 1 on its own. And for count 3, we would impose a sentence of six years’ imprisonment moderated down from the seven year sentence which we would have imposed to reflect the criminality involved in counts 2 to 6 if we were sentencing for those counts on their own. As to the remaining period of the suspended sentence, the President has explained that the proper calculation is the period of 315 days and we would require the respondent to serve that period.
The respondent should then be given the benefit of his early plea of guilty and other mitigating circumstances by fixing a parole eligibility date at one-third of the total effective sentence. The declaration as to pre-sentence custody made by the sentencing judge should not be altered.
We would make the following orders:
Appeal allowed.
The sentences imposed on 31 July 2025 in respect of counts 1 to 6 on the indictment are set aside.
In lieu thereof, substitute the sentences identified in the table below, convictions recorded in each case:
Offence Sentence
Count 1: Assault occasioning bodily harm (domestic violence offence) Two years’ imprisonment, to be served cumulatively on the sentence imposed on count 3
Count 2: Escaping from lawful custody 12 months imprisonment, to be served concurrently with the sentence imposed on count 3
Count 3: Malicious act with intent Six years’ imprisonment
Count 4: Serious assault 12 months imprisonment, to be served concurrently with the sentence imposed on count 3
Count 5: Serious assault 12 months imprisonment, to be served concurrently with the sentence imposed on count 3
Count 6: Serious assault 12 months imprisonment, to be served concurrently with the sentence imposed on count 3
Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), it is stated that the respondent was held in pre-sentence custody for 327 days between 7 September 2024 and 30 July 2025. The Court declares that 327 days of pre-sentence custody be imprisonment already served under the sentences imposed by order 3.
The date the respondent is eligible for parole in respect of each of the sentences imposed by order 3 be fixed at 21 August 2027.
The orders made on 31 July 2025 in respect of the breach of the suspended sentence are varied by –
a. ordering that the period of the suspended sentence which the respondent must serve be varied from 180 days to 315 days;
b. ordering that the date the defendant be eligible for parole be varied from 6 November 2026 to 21 August 2027,
but are otherwise confirmed.
Hili v The Queen (2010) 242 CLR 520 at [58]-[60], footnotes omitted. ↩
R v Nagy [2004] 1 Qd R 63 at [39]. ↩
R v Mulholland [2001] QCA 480. ↩
R v Anderson [2014] QCA 134. ↩
R v Townshend (2021) 292 A Crim R 26. ↩
R v Braithwaite [2004] QCA 82. ↩
R v Piper [2015] QCA 129. ↩
R v Ma’afu [2016] QCA 67. ↩
R v TBH; Ex parte Attorney-General (Qld) [2025] QCA 190 at [5] and [42] to [43]. ↩
R v Yaroslavceff [2022] SASCA 123 at [69]-[72]. ↩
R
DCS; Ex parte Attorney-General
(1994) 181 CLR 295
(2010) 242 CLR 520
(2011) 242 CLR 573
(2014) 253 CLR 58
(2015) 256 CLR 346
By majority, the appeal was allowed. The sentences on counts 1-6 were set aside and substituted. The majority imposed two years on count 1, cumulative on the six-year sentence for count 3; 12 months on each of counts 2 and 4-6, concurrent with count 3; declared 327 days of presentence custody; fixed parole eligibility at 21 August 2027; and varied the period of the suspended sentence to be served from 180 to 315 days. Mullins P would have dismissed the appeal.
After placing the respondent in the police car, Officer Stonier noticed Officer Humphrey was heavily bleeding from his ribs. He removed his vest and Officer Stonier saw a deep puncture wound on his left back ribs. An ambulance was called. Officer Humphrey was transported to the local hospital and then by the Royal Flying Doctor Service to the Princess Alexandra Hospital where he remained for 11 days. When the police searched the park, they found two brown scissor handles and the scissor blades.
Officer Humphrey suffered a puncture wound to his left rear chest which punctured his lung and caused the surrounding sac to fill with fluid. The impact fractured his eighth rib. A catheter was inserted to drain the fluid from his lung. If this had not been done, his pneumothorax would have increased in size and may have caused cardiopulmonary arrest due to circulatory failure. Medical opinion was obtained that, without treatment, Officer Humphrey’s injuries would endanger, or be likely to endanger, his life. The partner was also transported to the local hospital for treatment. She suffered several cuts and bruises to her head and face from the respondent’s attack.
Victim impact statements were provided by Officers Humphrey and Ward. Officer Humphrey was able to return to work as a police officer but he is conscious of the fears for his safety held by his fiancée and his mother whenever he responds to a domestic violence call. He is also affected by his knowledge of the trauma experienced by his fiancée and mother when he was stabbed by the respondent and hospitalised. Officer Ward was supervising Officer Humphrey on the day of the incident and has been adversely affected by the responsibility he felt for somehow failing his colleague. This incident has affected Officer Ward’s well-being and confidence at work.
There was another assault occasioning bodily harm committed by the respondent in June 2021 when he pushed a pen into his partner’s left ear, punctured the ear and caused a tear as he pulled the pen back out. This constituted another contravention of the domestic violence order. On the night of 16 June 2021, there was another argument with his partner. He poured petrol all around the motel room and flicked the remnants at his partner. This contravened the domestic violence order. The partner went to the bathroom and called the police while the respondent remained outside and had a lighter in his hand which he kept flicking on and off.
For the choking offence the respondent was sentenced to imprisonment for three years and six months to be suspended for an operational period of three years and six months after serving 532 days in custody in respect of which a presentence declaration was made that the time spent in that presentence custody be deemed as time already served under the sentence. Lesser concurrent sentences were imposed in respect of the three assaults occasioning bodily harm and the three contraventions of domestic violence order (aggravated offence). The date of sentence of 30 November 2022 was fixed as the parole release date.
It emerged during the sentencing hearing for the subject offences the respondent breached his parole for the 2022 sentences by having a positive drug test and was returned to custody on 5 March 2023 and was not released until 7 May 2024 which was approximately 14 months later. The respondent was therefore not in custody for the period of four months that immediately preceded the subject offending. Because the 2022 sentences had the combination of a suspended term of imprisonment in addition to concurrent sentences for the other offences for which a parole release date had been set, the 14 months’ imprisonment served in respect of the other sentences to which the parole order had related did not count as time served in respect of the suspended term of imprisonment. The prosecutor made the appropriate concession that the credit of 14 months should be given in favour of the respondent against the suspended term of imprisonment. At the date of sentencing before the sentencing judge, some 745 days (about two years and 15 days) remained to be served in respect of the sentence for the choking offence. After giving the notional credit of 14 months, that left about 10 months and 15 days of the suspended term of imprisonment to be activated.
The comparable authorities to which the parties had referred in the hearing (which included R v Braithwaite [2004] QCA 82, R v Devlyn [2014] QCA 96 and R v Lappan (2015) 255 A Crim R 166) were of utility as yardsticks but the sentence to be imposed must depend on the circumstances of the respondent’s case. The sentence must offer a genuine level of community protection. Regard must be given to the matters set out s 9(3) of the Penalties and Sentences Act 1992 (Qld) (Act) in determining the appropriate penalty. Having regard to all the circumstances, a significant term of imprisonment was appropriate to recognise the seriousness of the respondent’s conduct, the community’s disapproval of it, and to serve the purpose of deterring others and the respondent from engaging in similar violence in the future. A sentence in excess of six years’ imprisonment might have been appropriate if that were to be imposed on its own, but it must be reduced to take account of the fact that it must be served cumulatively with the period of six months outstanding for the choking offence. The sentences had also been reduced to take account of the respondent’s early guilty pleas.
Even though the sentencing judge did not expressly say it in the sentencing remarks, it is apparent from the structure of the sentences that his Honour followed the approach in Nagy at [39] of fixing a higher sentence for count 3 to take account of the criminality for all the offences for which he was being sentenced.
In Lappan, the offender pleaded guilty to three counts of assaulting police officers in the execution of their duty with circumstances of aggravation. He was sentenced on 23 April 2015 to five years’ imprisonment for the most serious assault (count 1) and to concurrent terms of two years’ imprisonment on the other two counts. The parole eligibility date was fixed at 26 October 2015. In fixing that date, the sentencing judge took into account a period of about 14 months of presentence custody which could not be subject of a declaration that it was time served under the sentences. The appeal succeeded on the ground there was a failure to give effect to the non-declarable presentence custody in relation to the head sentence.
The offender in Lappan had been causing a disturbance at a convenience store when paramedics and police officers attended. The offender refused assistance by police or by the paramedics and behaved aggressively, insulted the police officers and threatened to hurt them. The first complainant used a taser against the offender but the offender pulled the wires from the taser. The second complainant also attempted to restrain the offender. During a struggle on the ground the offender produced a short knife stabbing the first complainant in the back of the leg and causing a laceration on the second complainant’s arm. The offender also bit the second complainant on his right hand. When the first complainant produced his firearm, the offender stopped resisting and let go of the knife. He continued to struggle and OC spray was deployed. When the offender was handcuffed, he told the police he had HIV. The offences were committed toward the end of the incident which had lasted for about 50 minutes. The offender had been in a state of amphetamine-induced psychosis. The first complainant suffered a wound of about 1.5 cm in length to his right buttock which went through the full thickness of the skin, required two sutures, resulted in considerable bruising and left him unable to sit comfortably for weeks. He also had the uncertainty about whether he contracted HIV until the results of testing obtained three months later. The second complainant suffered several cuts to the wrist with one just breaking the dermis.
The sentencing discretion was re-exercised. After reviewing several authorities, Peter Lyons J (with whom Holmes CJ and McMurdo J agreed) identified that the only sentence of comparable length was that imposed in Braithwaite and that was a more significant instance of the offence. The extensive injuries suffered by the male police officer in Braithwaite distinguished it from the circumstances of the offence in Lappan and the offender in Braithwaite had been sentenced to longer terms of imprisonment in the past but continued to offend. Peter Lyons J concluded (at [63]) that the appropriate sentence on count 1 was imprisonment of four years and six months with the parole eligibility 18 months from the commencement of the sentence but with both periods then adjusted for the time spent in custody prior to sentence. That would have resulted in the imposition of a sentence of three years and four months for which the appropriate parole eligibility date would have been 23 August 2015. As that date had passed, the sentence for count 1 was reduced to three years’ imprisonment and the parole release date was fixed at the date of delivery of the reasons on 29 September 2015.
Devlyn and Lappan were examples of less serious offending than Braithwaite. The sentence of six years’ imprisonment in Braithwaite reflected the criminality of the other serious offence of the arson of a motor vehicle, the significant and lasting injuries caused to the complainant, and the offender’s history.
A summary of the offending in Mulholland shows why it can be put aside as a comparable authority. The offences were committed on 5 October 1999. Two police officers, using their vehicle’s siren and lights, commenced pursuing the Commodore vehicle being driven by the offender. His female co-offender was the passenger. There was a protracted pursuit over about 16 kms on a motorway and suburban roads. The Commodore reached more than 210 kph and the offender’s driving put other users of the roads at risk. At one point, the offender braked heavily and proceeded to fire at least three shots at the windscreen of the police vehicle. None of them hit the vehicle but one passed through a van and the driver of the van was struck by flying glass and part of the jacket of the bullet. The chase ended when the offender lost control of the Commodore and it collided with a tree. There were two police officers at the scene when that happened. The co-offender surrendered to the police but the offender fired his pistol at least eight times at the first police officer who returned the fire. The second police officer sheltered in the police vehicle. The offender stopped shooting only when he ran out of ammunition. The offender was sentenced to 10 years’ imprisonment for the offence of attempting to strike the first police officer with a projectile to prevent lawful arrest. (The maximum penalty for that offence was life imprisonment.) The sentence for that offence was to cover the overall criminality of all the offences including the dangerous driving, the serious assault on the police officers involved in firing at their vehicle, the unlawful wounding of the driver of the van, the serious assault of the second police officer and the drug offences that were detected. The offender was 48 years old with a substantial criminal history over the previous 30 years that made him a worse recidivist offender than the respondent. In addition, the offending for which the sentence of 10 years’ imprisonment was imposed was the culmination of a series of offences over a protracted period and involved the use of a firearm which put the offending in a much more serious category than the respondent’s offending.
A sentence of 10 years’ imprisonment was also imposed in Anderson for the offence of malicious act with intent where the offender had engaged in a sustained course of conduct for the purposes of evading arrest that included aiming and discharging a loaded firearm in the direction of an unmarked police vehicle during a pursuit at speed. He was found guilty after trial before a jury of the offences of serious assault (count 3), dangerous operation of a motor vehicle (count 4) and malicious act with intent (count 6). He was found not guilty of the offences of serious assault (count 1), dangerous operation of a motor vehicle (count 2) and attempted murder (count 5). The offender was in the passenger seat of his sedan that was being driven by his female co-offender when stopped at a roadside breath test. Although the co-offender returned a negative reading, she did not produce her licence when asked to do so, placed the sedan in reverse, and drove off at a great speed. A police officer shouted for her to stop and attempted to remove the keys. He ran beside the sedan for about 10 metres and was struck by the sedan causing bruising to his hip. That was the serious assault of which the offender was found not guilty. The co-offender drove the sedan on the incorrect side of the road for about 100 metres. That was the count of dangerous operation of a motor vehicle of which the offender was acquitted. Another police officer gave chase activating the police lights and siren in his vehicle. The offender leaned out the passenger window and pointed a long-barrelled firearm at the windscreen of the police vehicle (count 3). The police officer terminated the pursuit. Two other police officers in an unmarked police vehicle then pursued the sedan with lights and siren activated. One of the officers observed the offender aim a rifle or something similar at their vehicle and both officers heard a metal ting sound from the front of the vehicle. They immediately terminated the pursuit. The offender was found not guilty of count 5 but found guilty of the alternative count to the attempted murder charge of, with intent to prevent his lawful arrest, unlawfully attempting to strike the police officer with a projectile.
It was noted by Boddice J (with whom McMurdo P and Morrison JA agreed) in Anderson (at [26]) that the series of acts committed by the offender was considered by the sentencing judge to be less serious than the offending in Mulholland. The offender was 29 years old when he committed the offences. He had an extensive criminal history, including a previous conviction for attempted murder in 2001 for which he was sentenced to 12 years’ imprisonment with a declaration that he was convicted of a serious violent offence. The subject offences were committed less than 12 months after his release from custody. The offender’s appeal against conviction and sentence was unsuccessful. Even though the offender was younger than the respondent, his criminal history made him a worse recidivist offender than the respondent. In addition, the offence of malicious act with intent involved the use of a firearm and the criminality of all the offender’s offences to which the sentence of 10 years’ imprisonment related was also more serious than the respondent’s offending.
The offender in Townshend pleaded guilty to doing grievous bodily harm to a public officer with intent to prevent him from acting under lawful authority (pursuant to s 317(1)(d) and (e) of the Code) and was sentenced to 10 years’ imprisonment. His application for leave to appeal against his sentence was refused. The offender was driving a BMW and stopped at a red light when his vehicle was noticed by three police officers conducting a patrol in an unmarked police car. When the lights turned green, the BMW drove off and reached a speed of 140 kph and the police officers lost sight of it. By chance, they spotted the same car about five minutes later and followed it into a car park. One officer activated the police car’s lights. The offender made a U-turn in the car park and the officer drove the police car to block the BMW. Another officer got out and called to the offender to “stop, police”. That officer was about five to seven metres in front of the offender’s car. The offender did not stop but accelerated and drove directly at that officer so that the middle of the BMW’s bumper hit him. The officer was thrown onto the bonnet of the BMW. He hung on as the offender continued to accelerate and drove out of the car park. As the car was travelling at about 60 kph, the officer was flung onto the road. The BMW disappeared. The offender was not seen again that night but police found the BMW nearby. The offender’s accomplice was arrested quickly after the offence and told police that the offender was the driver.
The officer suffered very significant injuries, including major fractures to his skull and eye socket, ruptured right ear drum, numerous cuts and abrasions, and significant soft tissue injuries to both shoulders. He was placed in intensive care, suffered seizures and was put into an induced coma for 10 days. He was initially unable to walk, could not control his mouth and had trouble speaking. His long-term injuries included a complete loss of smell and taste, hearing loss in his right ear, neck pain when wearing the full kit for a police officer, limited movement in his right shoulder, lower back pain and heightened fatigue. He learnt to walk and talk again. Even though he returned to work, his ability to work was restricted by his injuries and his future was now unstable. The other two police officers suffered post-traumatic stress disorder from witnessing what happened to their colleague.
The offender in Townshend had an insignificant criminal history but a relevant traffic history which included driving without a licence and regularly driving in excess of the speed limit. His licence was suspended, or he was disqualified from holding a licence, on 10 occasions. The offender had been drinking alcohol and taking methylamphetamine on the day of the offence and panicked when he saw the lights of the police car and irrationally thought that the occupants were posing as police and were trying to rob him. There were traumatic aspects to his childhood. The offender provided a letter of apology to the Court. He did not deny his intention to run down the officer but wanted to convey he had not intended to cause grievous bodily harm. The sentencing judge found that the offender had made false statements and false denials and had resorted to lies to minimise his own responsibility. The offender’s guilty plea was late in the face of a strong prosecution case. The letter of apology was not given much weight as an indication of remorse. Sofronoff P (with whom Fraser and McMurdo JJA agreed) observed (at [41]) that the record of the offender’s “years of flouting of road safety gave a sense of foreboding of an offence” like the one committed by the offender and the history together with the circumstances of the offence demonstrated the need to protect the community and police. A sentence that signified “with undisputable clarity the community’s denunciation” was required. It was held (at [42]) that Mulholland and Anderson reinforced the correctness of the sentence of 10 years’ imprisonment.
Townshend was also a more serious example of the malicious act with intent offence than that committed by the respondent. It involved the use of a motor vehicle as a weapon and a more sustained course of conduct than that which constituted the respondent’s conduct that was the subject of count 3. Not only did the offender in Townshend drive his car directly at the police officer, so that the bumper hit him, the offender did not stop his vehicle when the police officer was thrown onto the bonnet and was hanging on. Instead, the offender accelerated and continued to drive until the police officer was flung onto the road. The police officer sustained horrific injuries with life-long consequences.
There were no errors of principle made by the sentencing judge in the process of identifying all the relevant matters for sentencing the respondent. The only error made was the calculation of the number of days that should be activated of the suspended term of imprisonment for the choking offence which on the method used by the sentencing judge was closer to 10 months than to six months. That miscalculation could be corrected by this court if the appeal otherwise succeeded on the ground of manifest inadequacy. If it does not succeed, this court does not have jurisdiction under s 188(1) of the Act to correct the error. The sentence could still be reopened in the District Court for the calculation of the activated portion of the suspended term of imprisonment to be corrected. (The reference in s 188(1) of the Act to a court reopening sentencing proceedings (including a proceeding on appeal) to make a correction that is contemplated by that provision is, in the case of an appeal proceeding, to a sentence that is imposed on appeal.) If that miscalculation of the suspended term to be activated had not been made and 10 months was activated rather than six months, the resulting head sentence of six years and 10 months was equivalent to the prosecutor’s submission before the sentencing judge of a head sentence of eight years’ imprisonment before the credit for the period of 14 months that it was common ground should be applied.
Despite the guilty pleas, because of the respondent’s history of violent offending and the seriousness of count 3, it was open to the sentencing judge not to set the eligibility for parole date as early as one-third of the effective sentence of imprisonment of six years and six months. That the sentencing judge did so in relation to a sentence that was lower than the sentencing judge could have imposed on count 3 does not necessarily mean that the sentence was manifestly inadequate. As for the head sentence for count 3 of six years, the sentence of seven years’ imprisonment for the offending in each of Piper and Ma’afu that was arguably more serious than the respondent’s offending, supports the conclusion that the sentence of six years for count 3 was at the lower end (but not outside) of a sound exercise of the sentencing discretion. The appellant has not shown that the leniency exhibited by the sentencing judge was to such a degree that this court should conclude there has been some misapplication of principle which made the sentence manifestly inadequate. It is therefore not necessary to consider the residual discretion.
While we agree with the President that a comparison of the circumstances of this case with the benchmark cases of Mulholland,3 Anderson4 and Townshend5 was not such as warranted a notional 10 year starting point for count 3, a six-year sentence is significantly below the lowest sentence which might reflect a proper exercise of the sentencing discretion in response to the considerations we have mentioned in the previous paragraph. That is supported by the six year sentence imposed on the offenders in Braithwaite,6 Piper7 and Ma’afu8 discussed by the President. While Braithwaite involved two officers being assaulted, one seriously and the sentence reflected the offender’s overall criminality which included arson, the offending did not involve use of a weapon, the offender’s serious criminal history did not include violent offending and the sentence was imposed at a time when the maximum penalty of 14 years not life imprisonment as was the case here. We do not consider that the present offending was less serious than the circumstances in which the offending in Piper and Ma’afu occurred. That offending did not involve police officers, lacked the criminal history of the applicant in this case and was considered to be out of character.
We conclude the sentence under appeal was manifestly inadequate.