R v South [2025] QCA 52

SOLICITORS: King Criminal Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent

1. BOND JA: I agree with the reasons for judgment of Bradley JA and with the orders proposed by his Honour.

2. BRADLEY JA: On 17 December 2024, the applicant was sentenced to two and a half years’ imprisonment with a parole release date after he had served eight months in custody. He sought leave to appeal against the sentence on the ground that it was manifestly excessive.

3. The sentence was imposed for the offence of doing grievous bodily harm. The applicant committed the offence over a few minutes from about 4.20 am on 12 August 2023, after he left the Treasury Casino in Brisbane in the company of two others. The acts constituting the offence were recorded on security footage from the casino and City Safe.

The complainant and his injuries

4. The complainant was 29 years of age. He was visiting from North Queensland for the weekend to see his parents. After a night at the football with his father, he went to the casino. The complainant left the casino a few minutes before the applicant and two companions.

5. The applicant pursued the complainant who was moving away from him along the footpath of William Street. The applicant struck the first blow by means of a push or a kick to the complainant. The complainant backed away from the applicant, into the middle of the roadway. The applicant advanced at him and struck a second blow, this time to the complainant’s head. The complainant was running away when the applicant struck the third blow, knocking the complainant unconscious. The applicant then caught an Uber ride home, leaving the complainant crumpled in the middle of the road.

6. Members of the public came to the complainant’s aid and called an ambulance. He was taken to the Royal Brisbane and Women’s Hospital. At 5.26 am he was admitted to the Emergency Trauma Centre at the hospital.

7. The complainant had suffered a serious brain injury, caused most likely by his head striking the roadway. He had bleeding between the brain’s surface and the outermost layer of membrane protecting his brain, with bleeding having spread into different areas of his brain. Pressure from the bleeding had caused his brain to shift about 6mm to the right from its normal position. There was also bleeding in regions near his brain stem. He suffered bruising and bleeding in the front and side of the brain, and blood accumulation outside the brain tissue between the brain and the skull. He also had a deep cut or tear in the skin in the area near the base of his skull.

8. If the complainant’s brain injury had been left untreated, it would be likely to have endangered his life. These injuries affected his sodium levels. If they were not controlled and continued to fall, they would have contributed to him becoming unconscious and so further endangered his life.

9. The complainant spent eight days in the intensive care unit under the neurosurgical team at the hospital. During this time, he had an altered level of consciousness. When he was first to be transferred to a rehabilitation centre, the complainant suffered a sudden reduction of consciousness. He suffered seizure activity and was drooling and snoring. He had faecal incontinence and was not responsive to pain. Some of these symptoms were addressed. However, ongoing seizure activity continued. He was intubated and medicated. A CT scan showed the midline shift of his brain was ongoing and there was a mild increase in fluids. The seizures he suffered required urgent intervention. Without urgent medical intervention, the seizures would have put the complainant at risk of aspiration and airway obstruction, which are life threatening complications.

10. After 10 days, the complainant was transferred to a rehabilitation centre, where he remained for four weeks. He has no recollection of this time, due to the severe post traumatic amnesia. He knows only what his family has told him, from their daily visits to the hospital from the Gold Coast.

11. As a result of his brain injuries, the complainant lost his sense of taste and smell. After seven months, his taste returned. At the time of sentencing, he was still unable to smell anything except strong chemical odours. He had been advised it is not certain if he will ever be able to smell properly again. He has continued to suffer headaches and fatigue.

12. The complainant’s parents cared for him at their home during his post-hospital rehabilitation over several months. He was unable to work for five months. He could not service his mortgage, and applied for financial hardship assistance. He lost his driver’s licence for six months, due to the seizures he was experiencing. By the sentencing hearing, he was still unable to drive at night. The injury had continued to affect his social life and the quality of his life. He was unable to participate in numerous hobbies and sports because of the risk of further head trauma.

The sentencing hearing

13. The applicant entered a timely plea of guilty. He did so in circumstances where his offending had been recorded on security footage from the casino and City Safe. Police had identified him after reviewing the recordings.

14. The applicant was a little over 18 at the time he committed the offence. He was 19 years of age at the sentencing hearing. He had no criminal history. The learned sentencing judge accepted that the applicant was genuinely remorseful for the harm he had caused to the complainant. References were tendered that spoke highly of the applicant and of his potential to overcome his current challenges and become a better person. The judge found that the applicant did have reasonable prospects of rehabilitation. That finding was made notwithstanding the applicant’s continued use of illicit drugs, including “a deliberate overdose with illicit drugs” about a week before the sentencing hearing.

15. His Honour noted in the applicant’s favour that he had taken steps by way of counselling and seeing several psychologists, a psychiatrist and other counselling services to begin to address his substance abuse issues and perhaps his anger management issues.

16. At the time of sentence, the applicant was employed as a concreter. He had a record of being gainfully employed. He enjoyed the support of his parents.

17. A report from a clinical psychologist noted the applicant had enjoyed a supportive family upbringing. It recorded a decline in the applicant’s academic performance in his later high school years, with decreasing motivation and increasing behavioural issues.

18. About two years before the offending, the applicant had suffered a brain injury. The clinical psychologist expressed a view that the consequences of this injury may have made the applicant likely to be easily agitated, to perceive others as potential threats, and to react in a disproportionate and excessive manner.

19. As noted, police had identified the applicant from the CCTV footage. Two weeks after the offending, police executed a search warrant at the applicant’s home address. This led to a voluntary police interview, in which the applicant said the complainant had provoked him by saying “hoo-roo”. He could not recall specifically what the complainant had said.

20. At the sentencing hearing, it was submitted for the applicant that he had acted upon “a perceived provocation” by the complainant. His Honour rejected that submission, observing:

“Even if there had been some type of verbal exchange which caused you some annoyance, the admitted facts are that the complainant was never in physical confrontation towards you. He was, at all relevant times, moving away from you, and in particular at the time of causing of grievous bodily harm, actively fleeing from you. I consider that the offence was entirely unprovoked. It was cowardly and gratuitous violence in circumstances where the complainant had done nothing to justify your assault upon him. Indeed, a consideration of all the facts and the contents on the video are suggestive of you for some minutes prior to the commission of the offence displaying some interest in the complainant as a potential victim for your gratuitous violence.”

21. The judge rejected the submission that there was any causal link between the applicant’s brain injury and his offending that was capable of being any real mitigating factor.

22. His Honour also rejected the suggestion that the applicant’s brain injury might be such as to reduce his moral culpability for his offending. Nor did his Honour find the applicant’s injury affected the significance of general or personal deterrence or denunciation as relevant sentencing considerations.

23. The judge also rejected the applicant’s apparently diagnosed polysubstance abuse disorder as a mitigating factor. His Honour noted, with respect correctly, that this disorder raised considerations of community protection and personal deterrence in the context of the formulation of an appropriate sentence. With respect correctly, the judge identified rehabilitation, personal deterrence, protection of the community and general deterrence as relevant considerations for the sentence. His Honour referred to R v Tupou; Ex parte Attorney-General (Qld) [2005] QCA 179, and the authorities there considered, noting the then Chief Justice’s observation that:

“In a number of recent decisions, the Court of Appeal has emphasised the strength of the importance of deterrence in sentencing for violent offending of this general character. The public rightly expects the courts, by their sentences, to achieve so much as can be achieved to help ensure the cities of this state are safe places for those who venture out during the night.”

24. His Honour referred to the remarks of Williams JA in R v Bryan; Ex parte Attorney-General [2003] QCA 018 that:

“Deterrence must be the major factor when influencing sentencing (in these cases). Ordinary citizens must be able to make use of areas such as the mall, even at night, sure in the knowledge that they will not be savagely attacked. The only way courts can preserve the rights of citizens to use public areas in going about their own affairs is by imposing severe punishment on those who perpetrate crimes such as this.”

25. For the applicant it was submitted that he should have an immediate release on parole, so that he would be able to make a $10,000 compensation payment to the complainant, given time. His Honour expressed the view that a sentence which did not involve any actual period of imprisonment, even if coupled with an order for compensation, would be “an entirely inadequate response to the seriousness of [the] offending and would be entirely inadequate to address the sentencing purpose of general deterrence”.

26. The applicant’s counsel had submitted that a head sentence of 18 months to three years would be appropriate for a young, first-time offender like the applicant and had expressed the view that it would be difficult to persuade this Court that “a short period of actual custody” was not an “appropriate sentence.”

27. In fixing upon the sentence imposed, the judge had regard to all the decisions of this Court to which counsel referred, and expressly chose the sentence that his Honour considered to be “the least required to meet all relevant considerations, including the consideration of general deterrence”.

Cases relied upon by the applicant

28. Mr Kissick, who appeared for the applicant in this Court, referred to three other decisions.

29. The first was R v Kinersen-Smith & Connor; Ex parte Attorney-General (Qld) [2009] QCA 153, in which a 17 and an 18-year old offender, with more advanced rehabilitation, were sentenced for grievous bodily harm to six and a half years’ imprisonment, suspended after six months, with an operational period of three years. The two offenders had attacked a complainant in concert. The complainant had sustained choroidal ruptures, haemorrhaging and retinal detachment in the right eye. The retinal detachment was corrected by surgery, but the choroidal rupture had left him with visual acuity in the right eye of less than 6/60, compared with 6/6 in the left. His loss of sight was not complete, but he was described as “legally blind”; and there was no prospect of improvement.

30. This sentence was not disturbed upon an appeal by the Attorney-General.

31. Mr Kissick also took the Court to R v Chitty; Ex parte Attorney-General (Qld) [2021] QCA 2. There, the offender was aged 25, with a relevant prior conviction for affray, when he committed grievous bodily harm. The offender punched a 39-year old man, who was engaged in a heated exchange with his friend, without warning in a public place. This caused the victim facial injuries and a broken jaw that required surgery, and repair to his teeth. There were ongoing physical, emotional and financial impacts of these injuries. The offender was sentenced to two and a half years’ imprisonment with immediate release on parole.

32. On the Attorney’s appeal, this sentence was found to be manifestly inadequate. Re-exercising the discretion, this Court sentenced the offender to two and half years’ imprisonment and fixed the parole release date after eight months in custody.

33. Mr Kissick also relied on R v Levy & Drobny; Ex parte Attorney-General [2014] QCA 205. In that instance, Mr Levy was sentenced to two and half years’ imprisonment with immediate release on parole for causing grievous bodily harm.¹ He was aged 19 at the time of the offence and had no criminal history. He punched and kicked a taxi driver, causing facial fractures, a skull fracture and jaw joint dislocation, which required surgical repair with plates and screws. On the Attorney’s appeal, this Court found Levy’s sentence to be manifestly inadequate, in part by a comparison with Kinersen-Smith, and to have given too little weight to public deterrence. The substituted sentence remained at two and a half years’ imprisonment, but parole release was deferred until the offender had served six months in custody.

Consideration of the application

34. At the hearing of this application, the applicant abandoned any attempt to identify a specific error in the sentencing judge’s approach. There was no challenge to the findings his Honour made. The application proceeded solely on the ground that the sentence was manifestly excessive.

35. In his thoughtful remarks, the sentencing judge balanced the relevant features in the applicant’s favour including his timely plea, his lack of criminal history, his remorse, his age, and his prospects for rehabilitation, with the other factors relevant to the sentence. These other factors included the serious violent nature of the unprovoked attack on the complainant, the applicant having left the scene with the complainant unconscious on the roadway, the very significant consequences of the offence for the complainant, and the applicant’s history of polysubstance abuse and identified problems with emotional and behavioural regulation.

36. The weight to be given to each of these considerations was a matter for the sentencing judge in the exercise of the sentencing discretion. However, on analysis, it could not be concluded that the sentence imposed on the applicant was manifestly excessive or that the sentencing judge must have misapplied a relevant principle.

37. Consideration of the cases identified by the applicant did not show any marked differences between those other sentences and that imposed upon the applicant for his offending. There was nothing that led to a conclusion that there must have been a misapplication of principle in this instance. Comparison with those decisions confirmed that the applicant’s sentence was not unreasonable or plainly unjust.

Final disposition

38. The application for leave to appeal should be refused.

39. BURNS J: I agree that this application for leave to appeal against sentence must be dismissed, for the reasons given by Bradley JA.