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[2025] QCA 196
respondent. Application for leave to appeal sentence refused.
2 cited instruments linked from this judgment.
The Court of Appeal refused GBU leave to appeal his 12-year sentence for the manslaughter of his wife. It held that the sentencing judge had not ruled out mitigation merely because GBU’s psychosis was drug-induced. The judge considered the mental impairment and then decided, in the circumstances, that general deterrence still had a role. The Court also found that earlier sentences did not establish a cap or show that this sentence was plainly unjust, particularly given the domestic violence context and the seriousness of the offending.
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2,471 words · generated 07/10/2026
In R v GBU [2025] QCA 196, the Queensland Court of Appeal considered an application for leave to appeal sentence. GBU had been sentenced to 12 years’ imprisonment for manslaughter, domestic violence offence, after pleading guilty. The deceased was his wife. He had originally faced a murder charge, but the Mental Health Court found that diminished responsibility applied. Under s 304A of the (Qld), the charge was reduced to manslaughter ([3]).
The offending occurred after a weekend during which GBU and his wife had stayed together and socialised with friends. GBU formed a delusional belief that she had taken his driver’s licence and Medicare card. The following morning, while she sat between his legs as he massaged her neck, he placed his arm around her neck and applied substantial pressure. After she stopped breathing, he made deep cuts to her forearms. He later told police he intended the pressure to stop her breathing, and that he cut her arms intending to kill her and end her suffering ([9]–[16]).
The psychiatric material described a drug-induced psychosis involving delusions about the deceased, paranoia, irritability and increased anger, defensiveness and impulsivity. The condition arose from sustained methylamphetamine abuse and dependence. The sentencing judge was told there was no evidence GBU was using illicit substances at the time of the offence ([19]). The Mental Health Court found that the illness substantially impaired his capacity to know he ought not kill her. It did not deprive him of all capacity: the sentence proceeded on the basis that he intended to end her life and retained capacity to understand what he was doing ([17], [21], [39]).
The sentencing judge imposed 12 years. In doing so, the judge addressed the domestic violence context, GBU’s mental condition and the possible relevance of general deterrence. The judge considered that the illness resulted from GBU’s long-term illicit drug use and concluded that this was a case in which general deterrence remained relevant. The judge also considered community protection, GBU’s antecedents, rehabilitation and the impact on the couple’s children ([23]–[26]).
The appeal raised two central questions: whether the sentencing judge had wrongly treated drug-induced psychosis as incapable of mitigation, and whether the 12-year sentence was manifestly excessive ([4]). Brown JA gave the reasons for the Court. Bowskill CJ and Mullins P agreed ([1]–[2]). The Court refused leave because GBU had not shown a reasonably arguable error ([71]).
The Court rejected the characterisation of the sentencing judge’s reasoning as a categorical rule that psychosis caused by drug use could not mitigate punishment. It found that the judge had considered whether general deterrence should be given weight in this particular case, consistently with the applicable authorities ([30]–[31]). The distinction matters: a conclusion about the weight of a sentencing purpose in an individual case is not necessarily a rule that removes a class of mitigating considerations.
The Court explained that Verdins does not apply only to offenders with a serious psychiatric illness. Its principles can extend to a mental disorder, abnormality or impairment of mental function existing at the time of offending or sentence ([32]). Such a condition may reduce moral culpability even when it does not provide a defence or reduce criminal responsibility. A mental condition can also affect how much weight should be given to deterrence and denunciation ([33], [36]).
That does not mean general deterrence is automatically eliminated whenever an offender has a mental disorder. The effect depends on the nature and severity of symptoms and the effect on the person’s mental capacity. The Court referred to the proposition that general deterrence will often receive little weight because a person with mental disorder may not be an appropriate medium for making an example to others. But it also noted that moderation need not be great where an offender acts with knowledge of what they are doing and of the gravity of their actions ([34]).
Applying those principles, the Court accepted that the sentencing judge had considered GBU’s impairment and diminished responsibility. The judge recognised that GBU’s capacity to reason that he ought not kill his wife was substantially impaired, but also that the impairment did not deprive him of capacity to control his actions or know what he was doing ([39]). The judge then assessed whether general deterrence remained relevant. The Court held that this case-specific decision was within the sentencing discretion ([40]).
The Court also considered Martin, a Victorian decision involving drug-induced psychosis. It did not decide whether Martin applied in Queensland ([50]). The case was different in an important respect: GBU had not consumed methamphetamine at the time of the offence. The psychosis was attributed to sustained drug abuse, rather than contemporaneous intoxication ([51]). Further, no evidence had been led about whether GBU knew that his drug use could cause psychiatric effects ([42], [51]). The Court therefore did not accept that Martin demonstrated error in this case.
On manifest excess, the Court reiterated that a sentence is not excessive merely because it differs from sentences in other cases. Appellate intervention requires a difference that indicates a misapplication of principle, or a sentence that is unreasonable or plainly unjust ([54]). The Court considered the cases relied on by GBU, but found that they did not establish a fixed upper limit for this type of manslaughter sentence. It emphasised that the offence was serious, involved two acts intended to kill, took place in a domestic relationship while the deceased was vulnerable, and was committed despite GBU retaining significant capacities ([69]). The comparisons did not establish that the sentence was outside the proper exercise of sentencing discretion.
The judgment does not announce a new sentencing test. It applies and clarifies existing principles concerning mental impairment, general deterrence and appellate review.
Before this decision, the principles discussed in Verdins and adopted in Queensland already treated impaired mental functioning as potentially relevant to moral culpability and sentencing purposes. The Court described those principles as applying beyond serious psychiatric illness and as capable of applying even if the impairment does not provide a defence ([32], [36]). Neumann had also recognised that general deterrence may often have little weight for an offender with mental disorder, while leaving room for cases where it remains relevant ([31], [38]).
The decision confirms that diminished responsibility does not settle the sentencing question in either direction. A finding that mental abnormality substantially impaired a defendant’s capacity for the purpose of the partial defence does not automatically mean that general deterrence must be reduced to a particular degree. Nor does it mean that the Verdins considerations are unavailable. The sentencing judge must assess the actual condition and its effect on the offender’s capacity, alongside the other relevant circumstances ([37]–[40]).
The judgment also cautions against treating drug-induced psychosis as a single category with one sentencing consequence. Martin discussed the possible importance of whether the offender foresaw the consequences of taking the relevant drug. The Court did not adopt that discussion as a binding Queensland rule. It expressly left open whether Martin applies in Queensland, and noted the absence of evidence about GBU’s knowledge ([42], [47]–[52]).
The Court identified s 9(9A) of the Penalties and Sentences Act 1992 (Qld), which provides that voluntary intoxication by alcohol or drugs is not a mitigating factor. It observed that voluntary intoxication will not necessarily preclude mitigation where an underlying mental disorder is established and the offending was not caused solely by voluntary intoxication ([52]). This was a conditional observation about the statutory issue, not a final determination that the section applied to GBU’s circumstances.
For comparator cases, the judgment confirms that older sentencing decisions must be handled with care where the statutory treatment of domestic violence has changed. The Court noted that domestic violence is to be treated as an aggravating factor unless exceptional circumstances make that unreasonable, and that prior sentencing ranges may no longer be useful as ranges ([60]–[61]). Earlier decisions may still assist in identifying unifying principles, but their sentences cannot simply be treated as a tariff.
At [37], the Court stated that diminished responsibility “does not exclude consideration of the Verdins principles, but nor does it necessarily result in a moderation of general deterrence.” In plain English, a mental impairment must be considered, but its presence does not dictate the outcome. The court must assess how the impairment affected the offender and what sentencing purposes remain relevant.
At [38], the Court endorsed the proposition that a mental disability may operate “either as a mitigating factor or as an aggravating factor”, or may have no substantial influence. This rejects an automatic approach. The same general label, such as drug-induced psychosis, does not by itself determine whether the condition reduces, increases or leaves unchanged the weight of sentencing considerations.
At [39]–[40], the Court accepted the sentencing judge’s assessment that general deterrence remained relevant because the illness was connected to the applicant’s own prolonged drug use, while also recognising the impairment that produced diminished responsibility. In plain English, the judge had to weigh both the causal background to the illness and the actual impairment at the time of the offence. The Court treated the weight assigned to general deterrence as a matter for the sentencing judge, subject to ordinary appellate review.
At [50], the Court said it was “questionable whether Martin would apply in Queensland” but that it was unnecessary to decide. This is an important limit on the decision. The Court did not adopt Martin as Queensland law, nor reject it. Its discussion of the case explains why the applicant’s argument did not establish error on the evidence before the sentencing judge.
At [54], the Court stated the threshold for manifest excess: the difference from other sentences must drive the Court to conclude there was a misapplication of principle, or show the sentence was unreasonable or plainly unjust. In plain English, a list of lower sentences is not enough. The comparison must reveal a meaningful error in the sentence under appeal.
At [69], the Court summarised why the comparison did not establish manifest excess. It emphasised the two acts intended to kill, the domestic violence context, the deceased’s vulnerable position, and the applicant’s retained capacity to understand and control his actions. The decision therefore rests on the combined features of the offending and impairment, rather than on any single factor.
The decision is relevant where sentencing involves a mental disorder or impaired mental functioning that was present at the time of offending, including where that impairment has contributed to a partial defence such as diminished responsibility. Its central point is that the existence of diminished responsibility does not automatically determine how much weight should be given to general deterrence ([32]–[40]).
It is particularly pertinent where the sentencing argument is framed too broadly, for example, that a drug-induced or non-organic condition can never mitigate. The Court rejected that categorical proposition. The assessment instead depends on the condition, its symptoms, the offender’s mental capacity, and the circumstances in which the impairment arose ([30], [37]–[41]).
The case may also be relevant where a party relies on Martin to address psychosis related to drug use. The judgment signals that evidence about the particular drug, the timing of consumption, prior experience, and foresight may matter to the argument, but it leaves open the status of Martin in Queensland. In GBU, the applicant was not using illicit drugs at the time of the offence and there was no evidence about his knowledge of the psychiatric consequences of drug use ([42], [50]–[52]).
For sentence comparisons, the decision is pertinent where a party proposes that a prior sentence establishes a ceiling or a defined range. It stresses that diminished-responsibility manslaughter does not have a single fixed range, and that cases need to be compared by their facts and relevant sentencing principles ([56]–[61], [64]–[65]). This is especially important where statutory amendments have changed the treatment of domestic violence.
The case does not establish that drug-induced psychosis must aggravate sentence, that general deterrence will always remain relevant, or that a 12-year sentence is generally appropriate for spousal manslaughter. Its conclusion turns on the particular findings and evidentiary record before the Court.
The judgment was delivered on 21 October 2025. The supplied judgment contains no later judicial treatment of R v GBU. It is therefore not possible, on the material provided, to report whether later courts have followed, distinguished or otherwise treated it.
The judgment itself draws on earlier authorities. It applies the approaches in Verdins and Neumann concerning mental impairment and general deterrence ([31]–[38]). It also discusses Newman, which restated that mental disability may mitigate, aggravate or have no substantial sentencing influence depending on circumstances ([38]). On the appeal threshold, it relies on Pham and MCT ([54]).
For domestic violence and comparator sentences, it applies the guidance in O’Sullivan and Lee: earlier cases are useful for identifying unifying principles, but an earlier sentencing range may no longer be useful after legislative change ([60]–[61]). The judgment’s treatment of Pringle and Potter is careful rather than dismissive. It explains why those cases did not establish the proposed ceiling or provide close yardsticks for GBU’s sentence ([55]–[60]).
The clearest expressly unresolved question is whether Martin applies in Queensland. The Court said it was questionable but unnecessary to decide ([50]). The judgment therefore should not be cited as resolving the Queensland status of Martin.
The Court also did not decide how a future case should resolve the relevance of an offender’s knowledge or foresight of the psychiatric consequences of drug use. It discussed Martin’s focus on probable consequences and foresight, but the issue was not raised at sentence in GBU and there was no evidence about his knowledge ([42], [47]–[51]). The judgment identifies this as a potential evidentiary and legal issue, not a settled Queensland test.
A further issue concerns how s 9(9A) operates where a mental disorder and voluntary intoxication may both be relevant. The Court stated that the provision does not preclude mitigation where an underlying mental disorder is established and voluntary intoxication was not the sole cause of offending, referring to Carey and Adam ([52]). It did not undertake a full application of that rule to GBU because he was not intoxicated with illicit drugs at the time of the offence.
Finally, the decision does not establish a numerical sentencing range for domestic manslaughter involving diminished responsibility. It instead stresses the variation between cases, the importance of individual comparison, and the effect of statutory changes concerning domestic violence ([59]–[69]). Whether another sentence is excessive will remain fact-specific.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
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 GBU [2025] QCA 196
PARTIES: R / v / GBU / (applicant)
FILE NO/S: CA No 27 of 2025 / SC No 1122 of 2024
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: Supreme Court at Brisbane – Date of Sentence: 30 January 2025 (Martin SJA)
DELIVERED ON: 21 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 23 July 2025
JUDGES: Bowskill CJ and Mullins P and Brown JA
ORDER: Application for leave to appeal sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SPECIFIC ERROR – where the applicant killed his wife and was originally charged with murder – where at the time of the offence the applicant was suffering psychosis induced by sustained drug abuse – where the Mental Health Court found the applicant had diminished responsibility at the time of the offence and under s 304A of the Criminal Code was guilty of manslaughter not murder – where the applicant pleaded guilty to manslaughter, domestic violence offence – where the applicant was sentenced to 12 years’ imprisonment – where the applicant submits that the sentencing judge erred in not treating the applicant’s psychosis as mitigating – whether the sentencing judge erred in the exercise of his sentencing discretion / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant killed his wife and was originally charged with murder – where at the time of the offence the applicant was suffering psychosis induced by sustained drug abuse – where the Mental Health Court found the applicant had diminished responsibility at the time of the offence and under s 304A of the Criminal Code was guilty of manslaughter not murder – where the applicant pleaded guilty to manslaughter, domestic violence offence – where the applicant was sentenced to 12 years’ imprisonment – where the applicant submits on appeal that the sentence was manifestly excessive – whether the sentence was manifestly excessive / Criminal Code (Qld), s 304A / Penalties and Sentences Act 1992 (Qld), s 9(9A) / R v Major; Ex parte Attorney-General (Qld) [2012] 1 Qd R 465; [2011] QCA 210, cited / R v Martin (2007) 20 VR 14; [2007] VSCA 291, considered / R v Neumann; Ex parte Attorney-General (Qld) [2007] 1 Qd R 53; [2005] QCA 362, considered / R v Newman (a pseudonym) [2021] QCA 13, considered / R v O'Sullivan and Lee; Ex parte Attorney-General (Qld) (2019) 3 QR 196; [2019] QCA 300, cited / R v Potter; ex parte A-G (Qld) [2008] QCA 91, considered / R v Pringle; ex parte A-G (Qld) [2012] QCA 223, considered / R v Verdins (2007) 16 VR 269; [2007] VSCA 102, considered / R v Yaldiz [1998] 2 VR 376, cited
COUNSEL: J D Robson for the applicant / J D Finch for the respondent
SOLICITORS: Legal Aid Queensland for the applicant / Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: I agree with Brown JA.
MULLINS P: I agree with Brown JA.
BROWN JA: The applicant, Mr GBU, was sentenced on 30 January 2025 to 12 years’ imprisonment for a charge of manslaughter, domestic violence offence, following a plea of guilty. The victim was his wife (the deceased). The applicant had originally been charged with murder, but following a finding by the Mental Health Court that the applicant had diminished responsibility at the time of the offence the charge was downgraded to manslaughter pursuant to s 304A of the Criminal Code.
The applicant applies for leave to appeal the sentence. The issues before this Court are whether the sentencing judge erred by finding general deterrence was still relevant in sentencing the applicant despite his suffering a mental illness rather than treating it as a mitigating factor and whether the sentence was manifestly excessive. For the reasons that follow I would refuse the applicant leave to appeal his sentence.
It is necessary to consider the circumstances of offending and the reasons of the sentencing judge before considering the specific issues raised.
Circumstances of offending
The facts surrounding the offending were the subject of an agreed statement of facts which included the following.
The applicant had been married to the deceased for about 27 years. They had two adult children. They had separated some six months before the offence but continued to see each other intermittently.
In January 2022, the applicant was prescribed anti-psychotic medication by his general practitioner after a period of behaviour involving delusional beliefs, paranoia, hallucinations, depression and anxiety. Psychiatric reports tendered at the sentence referred to the fact he had experienced a psychotic episode in September 2021 for which he had been admitted into hospital.
On the weekend of 14 February 2022, the applicant and the deceased attended a friend’s birthday party. They organised to stay together at the Pelican Waters Resort. They socialised over the weekend and attended the party on the Saturday evening. They were described as being affectionate towards each other. On the Sunday they had lunch together and again socialised with friends during the day. While at the bar early that evening, the applicant formed the belief that his driver’s licence and Medicare card were missing from his wallet for which he blamed the deceased. When they had returned to their accommodation he asked the deceased about his cards and whether his whole life with her had been a lie. The applicant claimed she made a comment that she would never be caught on video.
On the Monday morning after the applicant and the deceased woke up, the deceased made them coffee and then asked the applicant to rub her sore neck with Deep Heat. The applicant was on the bed and the deceased sat between his legs while he gave her a neck massage with the Deep Heat. He asked her questions during that time including asking again whether his life had been a lie.
The applicant then placed his left arm around her neck from behind and applied substantial pressure. The deceased struggled for several minutes but eventually stopped breathing and he let go of her. He left the bed and sat on the chair. He watched her on the bed and at one point thought he saw her chest move as if she was breathing. He then took a knife from her bag and used it to make large vertical cuts to each of her forearms. He then took a bottle of rum and began drinking it. He took several Valium tablets which he found in the deceased’s handbag. He became intoxicated. He then used the knife at some point to make superficial cuts to both of his own wrists. He fell asleep and when he woke up he took more Valium tablets and inflicted more cuts.
He and the deceased were later discovered by hotel management when they carried out a room check. The applicant was asleep on the floor. The police attended and woke him up. A knife was found under the pillow where the applicant was sleeping. The applicant did not require hospital treatment for the cuts to his arms.
Matters considered by the sentencing judge
Psychiatric evidence
In addition to the circumstances of the offending summarised above, the sentencing judge considered the summary of the applicant’s mental health in the agreed statement of facts as well as material that had been placed before the Mental Health Court and its findings that the applicant had a partial defence of diminished responsibility on the basis that “[he] was suffering from [a] drug-induced psychotic illness that substantially impaired his capacity to know he ought not do the act ...”
Consistent with the statement of agreed facts, the sentencing judge took into account the following.
The medical opinion of the psychiatrists who had assessed the applicant, that was generally shared by each of them, was that at the time of the offence the applicant was suffering a drug induced psychosis, which resulted in delusional beliefs involving the deceased. The defendant’s condition elicited paranoia and irritability and exaggerated his anger, defensiveness and impulsivity. The effect of the psychiatric evidence was that the disease arose from a history of sustained methylamphetamine abuse and dependence. There was no evidence he was using illicit substances at the time of the offence.
The sentencing judge also referred to the psychiatric evidence observing that the applicant may have been disinhibited in his actions and impulse control by the consumption of alcohol at the time of the offence, but that even if he had not consumed any alcohol, he would nevertheless have been substantially impaired.
The applicant’s symptoms were not found to be so severe as to deprive him of any capacity. The sentencing judge sentenced the applicant on the basis that he “killed the deceased with the intention of ending her life, but that [he] suffered an abnormality of mind which substantially impaired [his] capacity to know that [he] ought not kill her.”
The sentencing judge noted that the accounts given by the applicant to reporting clinicians indicated that at the time he killed the deceased he was angry with her and it was likely he held her in a delusional regard and considered that she confirmed some of his paranoid concerns.
Antecedents
Specific issues
“A question which must be considered is whether the particular case is an appropriate means for demonstrating that to others. I am satisfied that this is such a case. It was your conduct which led to your mental condition. You developed a significant mental illness because you engaged in the consumption of an illicit drug to such a great extent. The absolute folly of consuming illicit drugs is a message which should be made clear again and again.”
thirdly, the protection of the community. The sentencing judge took account of the fact that the applicant was no longer on anti-psychotic medication, but also the addictive nature of the drugs the applicant had taken for such a long time. While the primary judge did not consider he could ignore the prospect of the risk that the applicant would revert to drug use, he did not give it great weight in light of the expert evidence;
fourthly, the applicant had killed the deceased in circumstances in which he could not have felt at risk physically and in circumstances where he knew what he was doing but did not know what he was doing was wrong. There was no suggestion that he was in a state of fear. The applicant had shown a lack of insight in not being able to acknowledge his actions to Dr Schramm or Dr Scott which the sentencing judge found showed the applicant had failed to acknowledge the reality of what he had done and did not provide a “comfortable conclusion as to rehabilitation.”
The sentencing judge considered the authorities to which he was referred noting that it is notorious that manslaughter sentences vary due to the differing circumstances of offending. The sentencing judge observed that some of the decisions to which he had been referred predated the amendments concerning domestic violence. He observed the Court of Appeal had indicated that sentences for the kind of offence for which the applicant was sentenced can fall between 9 to 12 years.
Having considered the statutory consequences of the length of sentence that he was to impose and the effect an automatic declaration of a serious violent offence has on eligibility for parole and taking account of all of the matters outlined the sentencing judge determined that the applicant be sentenced to 12 years. The sentencing judge reiterated the severity of the applicant’s actions and the impact on their children, each of whom had given a victim impact statement.
Did the sentencing judge err in his consideration of the relevance of general deterrence to the sentence?
“That the learned sentencing judge erred in accepting the submission that, because the applicant’s psychosis was drug induced and not “organic” his mental condition could not mitigate punishment.”
According to the applicant, the learned sentencing judge erred in principle in apparently accepting the Crown’s submissions that the principles enunciated in R v Tsiaras5 and reformulated in R v Verdins6 should not be applied and treating the applicant’s mental impairment as a factor warranting an increased sentence.
The Crown submits that the applicant’s submission is misconceived, both because it inaccurately states the effect of the Crown’s submission and that the sentencing judge accepted it.
The Crown’s submissions should be accepted. First, while the Crown directed its submission to the fact that the applicant’s mental abnormality was the product of his own illegal behaviour in taking illicit substances which increased his moral culpability and made general deterrence relevant and should be treated as an aggravating factor it is inaccurate to say the sentencing judge accepted the submission that “because the applicant’s psychosis was drug induced and not “organic” his mental condition could not mitigate punishment”.7 The trial judge quite properly considered whether or not general deterrence should be given any weight in the present case which was consistent with the authorities. He did not act on the basis of a principle that because the psychosis was drug induced it could not mitigate punishment. While the sentencing judge did consider general deterrence was engaged in this case, there was no misapplication of principle in this regard. As the Crown submitted the learned sentencing judge engaged in a process of assessment similar to that as described in Verdins in order to assess whether the circumstances of the case and individual offender meant that the case was an appropriate vehicle for general deterrence or not.
The sentencing judge’s approach to considering whether or not general deterrence should be moderated as a result of the applicant’s mental abnormality accorded with the approach both enunciated by this Court in Neumann as well as the Victorian Court of Appeal in Verdins.
The Victorian Court of Appeal in Verdins clarified that the decision of Tsiaras which had similarly considered the application of sentencing principles to a serious psychiatric illness did not “‘cover the field’ in relation to mental illness and sentencing”8 such that the sentencing considerations it outlined were only applicable where an offender suffered a serious psychiatric illness. Those considerations extended to a mental disorder or abnormality or impairment of mental function that existed at the time of the offence or at sentence, even if not a serious psychiatric illness. A similar approach has been adopted in this Court approving such that “a mental disorder short of insanity may lessen the moral culpability of an offender and so reduce the claims of general or personal deterrence upon the sentencing discretion.”
“1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
…
Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
…”
The Victorian Court of Appeal in Verdins found that Tsiaras had also been misunderstood insofar as it was thought to exclude general deterrence altogether as a sentencing consideration.13 It stated that no such absolute rule was intended and rather as had been said by Winneke ACJ in R v Yaldiz14 “[w]hether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.” Or as Batt JA stated in Yaldiz “…general deterrence is not eliminated but still operates sensibly moderated, in the case of an offender suffering from a mental disorder …”15 However general deterrence will often be given little weight where an offender suffers a mental disorder or abnormality because the offender is not an appropriate medium for making an example to others.16 Conversely “if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great.”17
The principles set out in Verdins as to the approach to general deterrence were consistent with that discussed by Fryberg J in Neumann.
As the Victorian Court of Appeal in Verdins emphasised how and the extent to which sentencing principles will be affected by the fact someone was afflicted by a mental illness or impaired functioning will vary from case to case.18 The principles may apply to reduce an offender’s moral culpability even though the mental impairment does not serve as a defence and reduce the offender’s criminal responsibility.19
A mental abnormality suffered by a defendant giving rise to diminished responsibility does not exclude consideration of the Verdins principles, but nor does it necessarily result in a moderation of general deterrence in the application of sentencing principles as discussed by the Court of Appeal in .
“Neumann recognises that, depending upon the circumstances a mental disability may operate either as a mitigating factor or as an aggravating factor. Of course, it might also have no substantial influence upon the sentence at all.”
His Honour applied those principles to the present case and determined that the fact that the applicant’s own conduct in taking illicit drugs led to his mental illness, did make the present case an appropriate vehicle for general deterrence, observing that the “absolute folly of consuming illicit drugs is a message which should be made clear again and again.” These statements were made in the context of the sentencing judge having already considered the effect of the applicant’s impairment on his capacity as a result of his suffering a drug induced psychosis. Relevantly, he had diminished legal responsibility because his capacity to reason that he ought to know he ought not kill her was substantially impaired but the impairment was not so severe he was deprived of that capacity. He retained the capacity to control his actions and to know what he was doing.
The extent to which general deterrence was moderated by the circumstances of this case was a matter within the sentencing judge’s discretion.
The underlying premise of the applicant’s argument that the sentencing judge determined, as a matter of principle, that a non-organic condition could not mitigate the sentence is misconceived.
In oral submissions counsel for the applicant sought to demonstrate that the sentencing judge had focussed on the non-organic nature of the illness rather than what he contended was the critical factor which was the offender’s degree of knowledge of the effect of consuming methylamphetamine causing psychotic symptoms. In this regard, counsel submitted that the case of R v Martin24 set out the correct approach for applying the Verdins principles where the offender was in a drug induced psychosis. That was not a submission made by the applicant at the time of sentencing in this case, nor was any evidence led as to his state of knowledge of the effect of consuming methylamphetamine.
The case of Martin was decided in circumstances where the defence of diminished responsibility was not available,25 because of the offender’s psychotic state being the result of his intoxication with drugs at the time of offending.
The defendant in Martin was acquitted of “reckless murder” and found guilty of manslaughter for which he was sentenced, as well as four other offences. At the time of his offending, the defendant was in a drug induced florid psychotic state as a result of his voluntarily taking drugs. One of the grounds of appeal was that the sentencing judge had erred in rejecting a submission that the applicant’s moral culpability was reduced by the fact that he was psychotic at the time of the offence stating that “the psychosis from which you suffered was induced by your own illegal act”. The Court of Appeal did not find that the sentencing judge was in error in determining that applicant’s moral culpability was not reduced in that case due to his psychotic state.
“…We would not, however, endorse the general proposition which underpins this conclusion — that psychosis (or other mental illness) which is drug-induced can never be a mitigating factor because it is the result of the offender’s own (illegal) act.
Cases can be imagined where the offender’s psychotic state is drug-induced but is nevertheless treated as lessening the offender’s culpability. For example, the offender might have had no awareness — because of a lack of prior knowledge or experience — that the ingestion of a particular drug might trigger a psychotic reaction. In such a case, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act ….” (emphasis added)
The Victorian Court of Appeal did not establish any binding principle in relation to how a drug induced psychosis was to be approached. Rather it discussed the differing approaches that may be adopted to a drug induced psychosis including by reference to New South Wales authorities. Intoxication may be treated as an aggravating factor rather than a mitigating factor in a sentence if the reason for the intoxication is a self-administered drug, but it may be a mitigating circumstance if out of character.29
The Court of Appeal in Martin concluded its discussion stating that:30
“Voluntary ingestion of drugs should be approached no differently from intoxication, in our view. The critical question will be what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences.”
The Court of Appeal in Martin observed that the evidence presented at trial and at the sentence supported the drug induced psychosis being treated as an aggravating factor, because he was aware prior to the offending behaviour that when he took drugs he experienced delusions. The Victorian Court of Appeal rejected the contention of the defence that the consequences of the defendant’s drug use were not predictable.31
In a subsequent case R v Yousry Eid Shafik-Eid,32 Lasry AJA stated that *“*to bring the appellant within the contemplation of the analyses in Martin and Arvanatidis”, he was required “to establish on the balance of probabilities, that there was a lack of foresight by him as to the consequences of consuming the drugs he did on both occasions”.33
It is questionable whether Martin would apply in Queensland but it is unnecessary to decide in the present case.
Unlike the above cases, the present case is not a case where the drug induced psychosis was caused by the applicant having consumed methamphetamine at the time of the offence. A state of the mind that arises due to intentional intoxication is not recognised as a valid contributing cause of an abnormal state of mind and the defence of diminished responsibility under s 304A of the Criminal Code would not apply.34 Even if the case of Martin did apply no evidence was led that the applicant was unaware of the potential for his drug use to cause psychological conditions. The fact that he had not apparently suffered a psychotic episode before September 2021 did not demonstrate an absence of the relevant knowledge.
In terms of any application of Martin in this jurisdiction it would be necessary to consider s 9(9A) of the Penalties and Sentences Act 1992 (Qld) which provides that voluntary intoxication of an offender by alcohol or drugs is not a mitigating factor for a court to have regard to in sentencing the offender. However, if the offending was not solely caused by the voluntary intoxication because of an underlying mental disorder that is established by evidence, s 9(9A) will not preclude a voluntarily intoxicated offender receiving mitigation of their sentence.35
Was the sentence manifestly excessive?
In order to establish a sentence is manifestly excessive, it is not enough to establish that a sentence was different or even markedly different from sentences imposed in other matters. It must be demonstrated that the difference is such that the Court “is driven to conclude that there must have been some misapplication of principle”,36 or that the sentence is “unreasonable or plainly unjust”.37
In contending that the Court should infer error on the basis of manifest excess, the applicant principally relied on the case of R v Pringle; ex parte A-G (Qld).38 The partner was sentenced for the manslaughter of his partner following a finding by the Mental Health Court of diminished responsibility. A sentence of nine years was imposed with no parole eligibility date. In the appeal by the Attorney-General it was contended that the sentence was manifestly inadequate as a result of the sentencing judge not making a declaration under s 161B(3). President McMurdo39 reviewed comparable cases and observed that:40
“These cases suggest that the nine years sentence imposed with no early parole eligibility date and no declaration under s 161B(3), was within the established range for a spousal manslaughter based on diminished responsibility where there was a plea of guilty and no clear evidence of continuing danger to the community.”
The observation by the President does not establish that a sentence of nine years represents the outer limit for a proper exercise of sentencing discretion in cases involving spousal manslaughter, particularly given that decision was in the context of an appeal by the Attorney-General of Queensland contending that the sentence was manifestly inadequate.
There are some similarities between the present case and Pringle insofar as the defendant had strangled his wife to the point of unconsciousness in the belief that she had poisoned him, in front of his three small children. He had then removed the children to a separate room, stabbed his wife twice and then proceeded to inflict wounds upon himself which were not life threatening. He was found by the Mental Health Court to be suffering a delusional disorder such that he thought his attack on the deceased was a “desperate measure of self-defence”. He was then found to have regained some capacity for self-control and understanding prior to stabbing the deceased. His abnormality of mind was found to have impaired his capacity not only to know he ought not to have killed the deceased but his capacity to control his actions.41 The defendant was a long term user of cannabis but there is no reference to his mental abnormality having been drug induced, although it appears it may have contributed to the condition’s longevity.42
In Pringle the delusions from which he was suffering caused him to think he was acting in self-defence. That was in contrast to the present case where the sentencing judge found that the applicant did not act out of fear or self-protection but out of anger, albeit when delusional about her stealing his identity. The applicant in the present case was not found by the Mental Health Court to have diminished capacity in terms of his capacity to control his actions, unlike the defendant in Pringle. Although community protection was not as prominent a factor in this case as it was in Pringle, the applicant’s offending and culpability in this case was more serious than in Pringle’s case and the sentencing judge did not consider the applicant’s prospects of rehabilitation were assured. Pringle’s case does not support any inference that the present sentence was manifestly excessive.
The applicant also relied on the analysis of spousal killings where there has been a finding of diminished responsibility contained in R v Potter; ex parte A-G (Qld).43 According to Mackenzie AJA, the case reflected a range of 8 to 10 years*. Potter* was not otherwise comparable to the present case. The reference to a range is of little weight. Since reference to a range of sentences is not generally appropriate as opposed to consideration of comparable factors in cases which serve as yardsticks to the case in question.
“It must always be borne in mind that the maximum penalty for manslaughter is life imprisonment. In light of the factors properly taken into account by the sentencing judge, the applicant’s sentence was not outside the sentencing discretion.”
Similarly in R v Perini; ex parte A-G (Qld) (No 2), Chesterman JA observed that manslaughter as a consequence of diminished responsibility “is not a distinct class calling for a particular range of penalty the top of which is substantially below the statutory maximum.”50
The case of R v Mills51 involved the killing of the accused’s wife. He entered a plea of guilty on the basis of provocation. Both parties were engaging in escalating violence. He showed genuine remorse. The sentence of 9 years imposed by the Court of Appeal was prior to domestic violence being treated as an aggravating factor. In the present case the offender was not provoked and the deceased was in a vulnerable position when he strangled her. He subsequently cut her wrists to ensure she was dead.
In R v Willemyns52 a sentence of 10 years had been imposed where the defendant had diminished responsibility at the time he had killed his brother although he had not intended to but wanted “ to kill the monster inside” of him.53 His untreated mental illness was not related to drugs. None of the specific errors complained of included that the sentence was manifestly excessive. No error was found to be established by the Court of Appeal. It is of little assistance to the present case.
While the applicant referred to other cases at the end of his submissions as acting as a guide, it is unnecessary to address them as a review of those cases demonstrates they do not serve as yardsticks in the present case.54
The present case was objectively serious involving as it did, two acts by the applicant inflicting harm intending to kill the deceased. The applicant had the capacity to understand what he was doing and to control his actions. Given that his capacity to reason he ought not kill was substantially impaired, the intentional killing was reduced to manslaughter. The killing was a domestic violence offence carried out when the deceased was in a vulnerable position. While higher than some of the sentences imposed in other cases, an analysis of the cases referred to by the applicant does not demonstrate that the sentence imposed was manifestly excessive. The sentence imposed is not unreasonable or plainly unjust and does not suggest a misapplication of principle by the sentencing judge in his assessment of the various considerations relevant to sentence in this case.
Order
Application for leave to appeal sentence refused.
(2019) 3 QR 196. ↩
[2012] 1 Qd R 465 at [33]. ↩
[2007] 1 Qd R 53. ↩
Applicant’s further amended notice of appeal, p. 2. ↩
[1996] 1 VR 398. ↩
(2007) 16 VR 269. ↩
Applicant’s further amended notice of appeal, p. 2. ↩
Verdins at [3]. ↩
Verdins at [5]. ↩
R v Goodger [2009] QCA 377 at [21]. See also R v HYQ [2024] QCA 151 at [44] – [45] per Bowskill CJ with whom Dalton JA and Wilson J agreed. ↩
Verdins at [32]. ↩
Verdins at [32]. ↩
Verdins at [15]. ↩
[1998] 2 VR 376 at 383, quoted in at 273 [15].
R
GBU [2025] QCA 196
(2007) 20 VR 14
(2007) 16 VR 269
(2015) 256 CLR 550
(2014) 253 CLR 58
Application for leave to appeal sentence refused.
While waiting on a stretcher, the applicant spoke to police and told them that he had an argument with the deceased about his driver’s licence and Medicare card going missing which he accused her of stealing. He said that the deceased said it was true and nobody else would have figured it out. According to the applicant that led him to strangle her.
The applicant then went to the Maroochydore Police Station and made full admissions to the offending including how he had killed her. He told the police that the deceased had been stealing his identity since at least 2004 and made various elaborate allegations about what the deceased had done to that end.
He told the police once he had started applying pressure to the deceased’s neck his intention was to stop her from breathing. The applicant told the police that when he made the cuts on the deceased’s forearms he intended to kill her to stop her from suffering and “to make it peaceful for her”.
The autopsy showed that the cause of death was a combination of the neck compression and wounds to the deceased’s arms.
In Verdins, the Victorian Court of Appeal outlined at least six ways in which impaired mental functioning, whether temporary or permanent is relevant to sentencing.11 Relevantly this included that:12
The sentencing judge acknowledged that the sentencing considerations were relevant. His Honour correctly identified and applied the relevant principles in terms of the effect of the applicant’s mental abnormality upon the application of sentencing principles notwithstanding it had resulted in his criminal responsibility being reduced to manslaughter. The sentencing judge recognised that general deterrence is often given little weight in a case where an offender was suffering from a mental disorder or abnormality because the offender was not an appropriate medium for making an example to others. However by reference to R v Neumann; Ex parte Attorney-General (Qld),20 the sentencing judge also recognised that not all cases involving a mental disorder should be considered as an inappropriate vehicle for general deterrence. That is a correct statement of principle, consistent with Verdins, which has been followed by this Court.21 In R v Newman (a pseudonym)22 Sofronoff P23 reiterated that:
The Victorian Court of Appeal28 stated however that:
The applicant has not established any error in the exercise by the sentencing judge of his sentencing discretion and this ground is not made out.
The cases of Pringle and Potter are also of reduced relevance in consideration of a sentence insofar as they were considered prior to the 2016 amendment of the Penalties and Sentences Act (P & S Act) to include s 9(10A), which provides that domestic violence must be treated as an aggravating factor, unless the court considers it is not reasonable because of the exceptional circumstances of the case.
This Court in R v O'Sullivan and Lee; Ex parte Attorney-General (Qld)45 in a case of a domestic violence offence made clear that the effect of the legislative changes by s 9(10A) was that sentences imposed in earlier cases “are useful only insofar as they can be used to identify the unifying principles that should be applied” and observed that “a previous range of sentencing may no longer be useful”.
The applicant’s counsel referred to a number of cases which he contends were comparable cases although he did not generally undertake such an analysis. It is therefore only necessary to touch upon them briefly to demonstrate that none of the cases are particularly comparable, nor do they suggest the present sentence is the result of a misapplication of principle or plainly unreasonable or unjust.
In R v Beacham46 the offender was sentenced to 13 years’ imprisonment after he had bashed and kicked the deceased and injected him with a drug in a planned vigilante attack. He neither intended to kill nor inflict grievous bodily harm, but was liable to conviction for murder under s 302(1)(b) of Criminal Code. He was found to have diminished responsibility as a result of a mental illness which substantially impaired his capacity to know he ought not to do the act. The sentencing judge was found to have erred in increasing the sentence because of the offender’s future risk of danger to the community because the offender’s risk did warrant preventative detention. Although the Court of Appeal considered that the moral culpability of the offender was diminished and that the sentence was not an appropriate vehicle for deterrence, the offender was still resentenced to 12 years. While the offending was arguably a more serious case than the present it did not involve domestic violence.
In R v Zarnke47 the Court of Appeal dismissed an application for leave to appeal a sentence of 13 years’ imprisonment for manslaughter where it was contended that the sentence was manifestly excessive. He stabbed the deceased to death. He believed the deceased was trying to poison him. He was psychotic at the time of the offending. Although intoxicated with cannabis and methylamphetamine at the time, the offender had schizophrenia and was found to be substantially impaired in his capacity to know that he ought not kill the deceased and therefore had a defence of diminished responsibility. The offender was addicted to drugs from a young age and used methylamphetamine. He had suffered a decline in mental health leading up to the offence. He had engaged in rehabilitation in custody and became a model prisoner. Justice Fraser reviewed various relevant authorities and found the sentence was not manifestly excessive. He agreed with the observations of McPherson JA in R v Miguel48 that manslaughter sentences in the case of diminished responsibility vary greatly from terms of imprisonment as high as 20 years down to terms of one year, each turning on its particular facts and circumstances. Justice Fraser relevantly observed:49
The applicant has failed to establish that the sentence is manifestly excessive.
The application should be refused, the applicant not having demonstrated any reasonably arguable error in the sentence imposed.
Yaldiz at 381 per Batt JA (with whom Winneke ACJ and Hampel AJA agreed), quoted in Verdins at [17]. ↩
Verdins at [18]. ↩
Verdins at [20] quoting Hunt CJ in R v Wright (1977) 93 A Crim R 48 at 51. ↩
Verdins at [25] in the context of assessing moral culpability. ↩
R v Yarwood [2011] QCA 367 at [34]. ↩
[2005] QCA 362. ↩
See for example R v Goodger [2009] QCA 377 at [21] per Keane JA (with whom Fraser JA and Atkinson J agreed). ↩
[2021] QCA 013 at [14]. ↩
With whom Mullins JA and Boddice J agreed. ↩
(2007) 20 VR 14. ↩
Martin at [17] referring to it as the defence of mental impairment. ↩
Martin at [18]. ↩
Martin at [19]. ↩
Martin at [19]-[20]. ↩
See discussion of Coleman v R and R v Fletcher-Jones at [22]-[23]. ↩
Martin at [30]. ↩
At [53] and [42]. ↩
[2009] VSCA 217. ↩
Yousry Eid Shafik-Eid at [30] with whom Nettle JA and Redlich JA agreed. The case of R v Kidd [2024] VSC 458 was similarly a case of voluntary intoxication where the sentencing judge was satisfied that as a result of the unforeseen cannabis-induced psychosis the twenty-year-old’s moral culpability was significantly reduced. ↩
Section 109 Mental Health Act 2016 (Qld). ↩
R v Carey [2024] QCA 69 at [42]; R v Adam [2022] QCA 41 at [40]. ↩
R v Pham (2015) 256 CLR 550 at [28] per French CJ, Keane and Nettle JJ. ↩
R v MCT [2018] QCA 189 at [240] per Morrison JA. ↩
[2012] QCA 223. ↩
With whom Muir JA and Gotterson JA agreed. ↩
Pringle at [39]. ↩
Pringle at [18]. ↩
Pringle at [29]. ↩
[2008] QCA 91 at [37]-[40] per Mackenzie AJA (with whom Keane JA agreed). ↩
(2014) 253 CLR 58 at [41]. ↩
(2019) 3 QR 196 at [93]-[94]. ↩
[2006] QCA 268. ↩
[2019] QCA 141. ↩
[1994] QCA 512. ↩
Zarnke at [25]. ↩
[2011] QCA 384 at [66]. ↩
[2008] QCA 146 per Keane JA with whom Holmes and Fraser JJA agreed. ↩
[2023] QCA 163. ↩
Willemyns at [22]. ↩
R v Milini [2001] QCA 424; R v Schubring; Ex parte Attorney-General (Qld) [2005] 1 Qd R 515; and the single judge decision of R v Venn [2023] QSC 173. ↩