//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] QCA 156
respondent. Application for leave to add an additional ground for the application for leave to appeal against sentence refused. Oral application for leave to adduce evidence refused. Application for leave to...
The Court of Appeal refused all parts of Stephensen’s sentence application. It held that the later deterioration in his mother’s health and the failure of his eldest son to take on childcare did not show that the sentence was wrong when imposed, because the care arrangements had already been considered at sentencing. The Court also concluded that the five-and-a-half-year sentence was not shown to be manifestly excessive. It took account of the sentencing judge’s consideration of Stephensen’s children and vulnerabilities, but also the deliberate driving, serious injury, departure from the scene, and lack of a guilty plea or remorse.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,975 words · generated 07/10/2026
Mark Christopher Stephensen applied to the Queensland Court of Appeal for leave to appeal his sentence. A jury had convicted him of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene. The offence carried a maximum penalty of 14 years’ imprisonment when committed. On 23 May 2024, the District Court sentenced him to five years and six months’ imprisonment, fixed parole eligibility after 33 months, declared 69 days of presentence custody, and disqualified him from holding or obtaining a driver’s licence for four years [1].
1 cited instrument linked from this judgment.
The offending followed a history of conflict between Stephensen and the complainant, who was his niece’s partner. After a physical altercation on 4 March 2022, Stephensen got into his car, revved the engine, accelerated and turned towards the complainant. The complainant was close to the car but walking away. The car ran over his leg, causing multiple fractures [4]. Stephensen drove away before police arrived, in circumstances where he ought reasonably to have known the complainant was injured. The Court recorded that he did not leave to obtain medical or other help [5].
The complainant’s injuries included fractures to the tibia and fibula. He underwent surgery, could not do physical activities for four months, lost income, required further surgery, and continued to suffer emotional harm [7]. The Court described Stephensen’s conduct as “deliberately dangerous, not merely reckless” [5].
At sentencing, Stephensen was the sole carer of his four children, aged 10 to 18, and lived with them and his mother [8]. The sentencing judge took the children’s circumstances into account, along with the likely greater burden of custody because of Stephensen’s mental health conditions and vulnerabilities. The judge also considered admissions made during trial that reduced the number of witnesses required [12]–[14].
Stephensen’s appeal application had one original ground: that the sentence was manifestly excessive. His written submissions raised a further compassionate ground, based on his mother’s declining health and his eldest son not taking responsibility for caring for the younger children. He also applied orally for leave to adduce supporting evidence [2]. The Court refused leave to add the ground, refused leave to adduce the evidence, and refused leave to appeal against sentence [26].
The Court first addressed the proposed compassionate ground and fresh evidence. It described the sentence appeal task as identifying whether the sentencing judge made an error and, if another sentence was warranted in law, substituting that sentence. In doing so, the Court focused on the circumstances that existed when the sentence was imposed [15].
That focus mattered because the children’s care arrangements were already known at sentencing. The sentencing judge had understood that Stephensen’s mother and eldest son would assist with caring for the younger children. The judge found that the children were not left without adequate care, and treated the hardship arising from their father’s imprisonment as a mitigating consideration, though not a determinative one [13]. By the time of the appeal, those arrangements had not worked as expected: the mother’s health had significantly declined and the eldest son had left the family home [15].
The Court distinguished a sentence appeal from a review prompted simply by later changes in domestic circumstances. It reasoned that later evidence would not ordinarily establish that the sentence was wrong unless it showed what the relevant state of affairs was at the date of sentence [16]–[17]. The subsequent changes described by Stephensen did not show that the sentencing judge had misunderstood the care arrangements as they stood at the time. The Court therefore refused both the proposed additional ground and leave to adduce evidence for it [18].
On the manifest-excessiveness ground, the Court considered the sentencing remarks and the comparator authorities put before the sentencing judge [19]–[24]. The sentencing judge had given some weight to the trial admissions, the effect of imprisonment on Stephensen’s children, and the likelihood that custody would be more onerous because of his vulnerabilities [25]. The judge had also concluded that those conditions did not reduce Stephensen’s moral culpability, given the deliberate nature of the driving [14].
The Court placed particular emphasis on the features distinguishing Stephensen’s conduct from the comparator cases. It was not simply a case of reckless driving that caused a collision. The Court recorded a finding that Stephensen deliberately drove over the complainant, then left before police arrived [5], [25]. The sentence was also imposed after a trial, without a guilty plea, and the Court noted the absence of remorse or contrition [25]. Weighing those matters against the mitigation and the cited authorities, it concluded that the sentence was “neither unreasonable nor plainly unjust” [25].
The judgment applies, rather than announces a new sentencing-appeal rule. It sets out the relevant approach by reference to section 668E(3) of the Criminal Code (Qld): the Court identifies whether the sentencing judge erred and whether another sentence was warranted in law [15]. It also cites R v DCQ [2025] QCA 146 for the proposition that the Court focuses on circumstances existing at the time of sentence [15].
For later evidence, the Court draws on R v Hughes and R v Maniadis. It notes that successful sentence appeals involving evidence unavailable at the sentencing hearing are exceptional. In Maniadis, reports about the offender’s depression were admitted because they showed a condition relevant both to the time of the offending and the prospect of imprisonment [16]. In Hughes, later medical evidence showed that the prognosis for a disease the prisoner already had at sentencing had changed dramatically, with life expectancy measured in weeks or months [17]. The Court uses those cases to explain why evidence of post-sentence events generally needs to illuminate a state of affairs existing at sentence, rather than merely show that circumstances later changed [16]–[17].
In Stephensen’s case, the later evidence concerned a change in the practical care arrangements after sentence. The care issue itself had been known and weighed by the sentencing judge. The Court therefore treated the new circumstances as insufficient to support a sentence appeal [18]. The judgment does not suggest that later events can never be relevant. Rather, its account of the authorities describes exceptional circumstances and focuses on whether the later evidence helps establish something about the position at the time of sentence [16]–[17].
On sentence severity, the judgment compares the case with R v Colegate, R v Browne and R v Tresize. It stresses factual differences, including guilty pleas, the nature and duration of the driving, other offending sentenced at the same time, and whether the driving was deliberate or reckless [20]–[24]. It does not purport to replace those authorities or set a numerical tariff. Its reasoning is comparative and fact-sensitive.
The Court states that its task is to “discern whether an error was made by the sentencing judge” and whether another sentence was warranted in law [15]. In plain English, the appeal was not a fresh sentencing exercise based on everything that had happened by August 2025. The focus was whether the original sentencing decision was legally wrong, assessed against the relevant circumstances at that time.
The Court also says that an appeal “is not for the purpose of reviewing the sentence because circumstances have arisen subsequent to the sentence that affect the domestic arrangements” of the sentenced person [16]. In plain English, a sentence appeal is not ordinarily a mechanism for adjusting a sentence simply because family arrangements later become harder or different.
The key application appears in the statement: “The care arrangements for his children were a known issue at the date of sentence” [18]. The sentencing judge had already considered the expected care by Stephensen’s mother and eldest son, and had treated the impact on the children as mitigation [13]. The later failure of those arrangements did not, in the Court’s view, establish that the original sentence was unwarranted.
On the sentence itself, the Court’s conclusion was that it was “neither unreasonable nor plainly unjust” [25]. This followed its consideration of the sentencing judge’s mitigating findings and the seriousness of the deliberate conduct, the injury, leaving the scene, and the absence of a guilty plea or remorse [25]. The Court’s conclusion was that the material did not justify granting leave to appeal, not that the mitigating features were irrelevant.
The judgment is relevant to sentence appeals where an applicant seeks to rely on developments after sentencing, especially changes to family or caregiving arrangements. The central question identified by the Court is whether the new material shows a relevant state of affairs already existing at the time of sentence, or instead describes a later change [15]–[18].
It is particularly relevant where the sentencing judge knew of the underlying issue and expressly took it into account. Here, the applicant’s role as primary caregiver was before the sentencing judge, and the judge considered the children’s hardship and the planned assistance from the applicant’s mother and eldest son [13]. The later breakdown of those arrangements did not show that the sentencing judge had sentenced on a materially incorrect understanding of the position at the time [18].
The judgment also provides a comparison for dangerous-driving sentence appeals involving grievous bodily harm. It highlights the importance of the manner of driving, the degree of deliberateness, the seriousness and duration of the injury, leaving the scene, plea, remorse, criminal history, and personal mitigation [20]–[25]. The Court regarded the deliberate decision to drive over a complainant as materially different from cases involving reckless driving, even where those cases also caused serious injury [24]–[25].
The decision should be read within those stated facts. It does not establish that every change in a family’s circumstances will be irrelevant, or that every deliberate driving case will attract a comparable sentence. Its reasoning depends on the particular sentencing record and the comparison authorities discussed by the Court.
The judgment was delivered on 26 August 2025. The supplied judgment contains no later judicial treatment of R v Stephensen and therefore does not establish how subsequent courts have applied, followed, distinguished or limited it. No claim about later treatment can be drawn from this source alone.
The judgment itself explains the earlier authorities it used. It cites R v DCQ on focusing on circumstances at sentence [15], and considers Hughes and Maniadis in relation to subsequent evidence [16]–[17]. For sentence comparison, it discusses Colegate, Browne and Tresize [19]–[24]. Those authorities form the Court’s stated reasoning in this case, but are not later treatments of Stephensen.
The judgment does not define a comprehensive test for when post-sentence evidence will be admitted. It describes successful cases as exceptional and explains that the evidence will generally need to prove a fact existing at the time of sentence [16]–[17]. The precise boundaries of that exception are not resolved here, because the Court found the proposed compassionate evidence concerned later changes to arrangements already known at sentencing [18].
Nor does the judgment decide how a materially different original understanding of care arrangements would affect a sentence appeal. The Court’s reasoning turns on the fact that the care issue was known and considered at sentence [13], [18]. It does not determine the position where evidence later reveals that an assumption made at sentencing was already false at that time.
The judgment also does not establish a fixed sentencing range for deliberate dangerous driving causing grievous bodily harm. Its discussion of Colegate, Browne and Tresize identifies differences in pleas, criminal history, duration and nature of driving, injury, and other offending [20]–[24]. The Court’s conclusion is fact-specific [25].
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
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 Stephensen [2025] QCA 156
PARTIES: R / v / STEPHENSEN, Mark Christopher / (applicant)
FILE NO/S: CA No 113 of 2024 / DC No 157 of 2024
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Cairns – Date of Sentence: 23 May 2024 (Fantin DCJ)
DELIVERED ON: 26 August 2025
DELIVERED AT: Brisbane
HEARING DATE: 21 August 2025
JUDGES: Mullins P, Doyle JA and Cooper J
ORDERS: Application for leave to add an additional ground for the application for leave to appeal against sentence refused. Oral application for leave to adduce evidence refused. Application for leave to appeal against sentence refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was convicted after a trial of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene – where the applicant was the sole carer of his four children at the time of sentencing – where the sentencing judge took into consideration the impact of the sentence on the applicant’s children – where the applicant’s mother took over the care of the four children – where the applicant sought leave to adduce further evidence regarding the declining health of his mother and his eldest child not assuming responsibility for caring for his other children – where the applicant sought leave on appeal to add compassionate grounds to reduce his sentence to enable him to assume caring responsibilities for his children – whether the applicant should be granted leave to add the additional ground and adduce additional evidence relating to the compassionate grounds / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene – where the applicant’s conduct was found to be deliberately dangerous and not merely reckless – where the applicant was the sole carer of his four children at the time of sentencing – where the sentencing judge took into consideration in favour of the applicant the admissions made at trial by the applicant to reduce the number of witnesses, the impact of the sentence on the applicant’s children, and that custody would be more onerous on the applicant due to his mental health conditions – where there were aggravating factors that he applicant ran over the complainant deliberately and left the scene before police arrived – whether the sentence imposed was manifestly excessive / Criminal Code (Qld), s 668E / R v Browne [2016] QCA 111, cited / R v Colegate [2022] QCA 148, cited / R v DCQ [2025] QCA 146, cited / R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, considered / R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited / R v Tresize [2011] QCA 139, cited
COUNSEL: The applicant appeared on his own behalf / H S McIntyre for the respondent
SOLICITORS: The applicant appeared on his own behalf / Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 15 March 2024, Mr Stephensen was convicted after trial lasting five days in the District Court before a jury of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene. The maximum penalty for that offence when it was committed was 14 years’ imprisonment. Mr Stephensen was sentenced on 23 May 2024 to imprisonment for a period of five years and six months with an eligibility for parole date fixed at 14 December 2026 (after serving 33 months or one-half of the sentence). A presentence custody declaration was made in respect of 69 days served in imprisonment between 15 March and 22 May 2024. He was disqualified from holding or obtaining a driver’s licence for four years.
Mr Stephensen was represented by counsel and solicitors at the trial and at the sentencing hearing. Mr Stephensen is not legally represented for his application for leave to appeal against sentence. The only ground for his application is that the sentence was manifestly excessive. His written submissions raise an additional ground (the compassionate ground) that, due to the decline in his mother’s health and that his elder son has failed to take on the care of Mr Stephensen’s three younger children, he seeks a reduction in his sentence on compassionate grounds. He needs leave to add this additional ground. Mr Stephensen’s amended outline lodged with the Registry on 30 July 2025 attached documents in support of the compassionate ground. Mr Stephensen has made an oral application for leave to adduce this additional evidence.
The application to add the additional ground and the application for leave to adduce the additional evidence are related and will be determined in conjunction with the application for leave to appeal against sentence.
Circumstances of the offending
The complainant was Mr Stephensen’s niece’s partner. There was a history of conflict between Mr Stephensen and the complainant. On 4 March 2022, the complainant and Mr Stephensen had a physical fight. Mr Stephensen had got out of his car armed with a long, thick metal torch and started swinging it at the complainant who defended himself by punching Mr Stephensen. Mr Stephensen’s teenage son got out of the car armed with a hammer and tried to assist his father. The niece took the hammer from Mr Stephensen’s son and gave it to the complainant who told Mr Stephensen to put the bat down and “fight fair” while the complainant held the hammer down by his side. Mr Stephensen then got into his car with his teenage son as a passenger, revved the engine, accelerated and turned the car towards the complainant while he was very close to the front right of the car but walking away. Mr Stephensen drove the car and ran the complainant over. The complainant’s leg went under the right front wheel, causing multiple fractures to the leg when the complainant was presenting no threat to Mr Stephensen.
Mr Stephensen drove off before the police arrived, in circumstances where he ought reasonably to have known the complainant was injured. He did not drive off to obtain medical or other help for the complainant. The physical fight that preceded Mr Stephensen’s driving over the complainant’s leg was captured on CCTV footage from the nearby service station. The complainant’s arms were draped on the bonnet of the car, as he went under the front of the car. The CCTV footage showed the car “jerking” as Mr Stephensen ran over him. Mr Stephensen was not affected by drugs or alcohol at the time. His conduct was “deliberately dangerous, not merely reckless”.
Mr Stephensen participated in a record of interview with police on the same day as the offence. He admitted to driving the car but told lies that were shown to be so by the CCTV footage. Mr Stephensen gave evidence at the trial and called evidence from his son. Mr Stephensen maintained that he had driven off to get away from the complainant because he was threatening to hit Mr Stephensen with the hammer. The jury’s verdict showed that they were satisfied beyond reasonable doubt that Mr Stephensen had no lawful excuse for driving dangerously, he was not acting in circumstances of a sudden or extraordinary emergency, and that he did not reasonably believe there was such an emergency.
The complainant suffered serious physical injuries, including a displaced transverse fracture of the tibia and a comminuted fracture of the proximal fibula. He underwent surgery. A metal rod was inserted into his tibia. The injuries constituted grievous bodily harm. For four months after the offending the complainant was not able to do anything physical. He suffered financial loss in not being able to work. The complainant requires further surgery to remove the metal bolts from his leg and has continued to suffer emotional harm.
Applicant’s personal and criminal history
The offence was committed just before Mr Stephensen turned 45 years old. He has four children. At the date of sentence he had sole custody of them and their ages ranged between 10 years and 18 years. He and his children were living with his mother.
Mr Stephensen left school in year 10 and started working on banana farms. When he was in his 20s he suffered a workplace injury to his shoulder that required surgery and steel implants. He stepped back from paid work when he became the sole carer of his children. He returned to some periods of truck driving and maintenance work when the two eldest children reached high school.
Mr Stephensen’s criminal history commenced in 1995 when he was 18 years old for possession of a dangerous drug. He had three subsequent appearances in the Magistrates Court for minor offending for which he was fined or ordered to pay restitution. In 1999 he was admitted to a probation order for 12 months for driving under the influence of alcohol or other substance. He was dealt with for wilful damage and other offences in the District Court on 26 June 2000 for which he was given probation for two years (with a special condition to attend a substance abuse program) and community service of 150 hours. The community service order was revoked in February 2001 because of his inability to perform due to injury. There was then a significant period of about 17 years when no offences were committed until the subject offence. Whilst on bail for the subject offence, Mr Stephensen committed public nuisance on 22 December 2023 for which he was fined $300. Mr Stephensen has a lengthy traffic history with multiple periods of suspension for accumulation of demerit points. There were dated entries for unlicenced driving and driving under the influence of alcohol but there was significant improvement in his traffic history in recent years.
Mr Stephensen was assessed by clinical psychologist, Ms Jones, who provided a report (exhibit 7) for the purpose of the sentencing. Ms Jones interviewed Mr Stephensen by video on 29 April 2024 and was provided with documents from his treating psychologist and general medical practitioner together with relevant documents from the trial. The report included the following. Mr Stephensen had some difficulties at school related to his poor behaviour and inattention in class and reported being diagnosed with attention deficit hyperactivity disorder. He commenced cannabis use at the age of 14 years. Prior to the commission of the offence, there had been an issue involving his elder son and the son’s girlfriend who was a minor at the time and Mr Stephensen became frustrated that complaints he made to the police regarding harassment towards his son were not acted upon. The offence was committed in circumstances where Mr Stephensen has collected his second son in response to a call and was feeling distressed about the call from his son. Mr Stephensen reported being diagnosed with a genetic bone disease and having scoliosis of the spine. He reported a more recent diagnosis of post-traumatic stress disorder which resulted in his commencing psychological therapy in February 2023. On the application of psychometric instruments and results, Mr Stephensen’s self-reported scores fell within the extremely severe range for depression and anxiety and within the severe range for stress. At the time of the offence, Mr Stephensen was highly stressed due to being in the presence of persons who had traumatised him and his son and in the context of his underlying propensity to have a poor ability to control his reactivity and his heightened state on the day of the offending. It was likely Mr Stephensen’s distress in custody will increase. Given Mr Stephensen’s history and his presentation at the time of the assessment, it was likely that a custodial sentence would generally be more onerous upon him, when compared to others who did not have his background, diagnoses and vulnerabilities.
Sentencing remarks
Apart from outlining the circumstances of the offending and Mr Stephensen’s personal and criminal history, the sentencing remarks included the following. Despite Mr Stephensen’s continuing to maintain that he did not know that he had run over the complainant, the CCTV footage made it impossible to conclude that Mr Stephensen did not know he had run the complainant over. Mr Stephensen’s behaviour on the day of offending was aggressive and erratic and he was in “a highly elevated, agitated state” which contributed to his impulsive and deliberate decision to drive towards the complainant. Mr Stephensen had not been charged with any separate offences constituting assault or otherwise for the conduct that immediately preceded driving over the complainant. The physical interaction between Mr Stephensen and the complainant was not taken into account as an aggravating factor on the sentence. It counted in Mr Stephensen’s favour that he made admissions during the trial that reduced the number of witnesses called to give evidence. Mr Stephensen’s criminal history was “largely dated” and was not given significant weight in the sentencing.
Mr Stephensen was not to be punished for pleading not guilty in the face of “a very strong prosecution case” where there was CCTV footage of the offending. By proceeding to trial, there was no evidence of remorse or contrition on Mr Stephensen’s part to mitigate the sentence. Even though Mr Stephensen expressed regret about the consequences of his behaviour for his immediate family, he had only himself to blame. His elderly mother was now with the assistance of his elder son caring for the other children. This was a case where s 9(2)(fb)(i) of the Penalties and Sentences Act 1992 (Qld) (PSA) was enlivened, as Mr Stephensen was the primary caregiver for his children. It was not suggested that because of Mr Stephensen’s imprisonment they were left without adequate care as his mother was living with them and his elder son was also taking a responsible role assisting in the care of his siblings. The hardship for his children as a consequence of his behaviour and imprisonment was a matter to take into account in mitigation but not a determinative factor. It was “one factor in circumstances where there are not many factors in mitigation”.
Mr Stephensen self-reported a degenerative bone disease and a previous diagnosis of PTSD. His physical health condition meant he was unable to perform physical work. Mr Stephensen had also self-reported a diagnosis in his primary school years of ADHD. In circumstances where those matters were not contested by the prosecution, the sentencing judge accepted that Mr Stephensen may present as someone with symptoms consistent with ADHD. Mr Stephensen’s difficulty regulating his emotions and controlling his behaviour was manifest during the trial, demonstrated by frequent calling out, agitated physical behaviour in court and other displays. His physical or mental health conditions did not reduce the moral culpability of the offending because of the deliberate nature of his conduct. His poor impulse control and poor behavioural control is relevant to his risk of reoffending. The sentencing judge accepted that Mr Stephensen’s conditions would likely make the time served in custody more onerous for Mr Stephensen than when compared to others who did not have his background and vulnerabilities and that was a matter to take into account in his favour. His ongoing imprisonment will have an adverse impact on his mental health which was also a matter in his favour. General and specific deterrence and denunciation were important. Protection of the community was less significant in Mr Stephensen’s case. The sentence must also facilitate his ongoing rehabilitation. The mitigating factors in Mr Stephensen’s favour did not warrant deferring the parole eligibility date until after more than one-half of the sentence was served.
Should the applicant be given leave to add the additional ground and adduce evidence?
The role of this Court on an appeal against sentence is to discern whether an error was made by the sentencing judge in the sentence that was imposed and, if there was some other sentence warranted in law that should have been imposed, then that other sentence can be substituted: see s 668E(3) of the Criminal Code (Qld). In undertaking that task the Court focuses on the circumstances that existed at the time of the sentence: R v DCQ [2025] QCA 146 at [44]. The material relied on by the applicant for the compassionate ground reveals that Mr Stephensen’s expectations when he was sentenced that his mother in conjunction with his elder son would have the responsibility for caring for his three younger children have not been met due to the significant decline in his 83 year old mother’s health and that his elder son did not assume the responsibility of caring for his grandmother and his siblings and left the family home.
An appeal against sentence is not for the purpose of reviewing the sentence because circumstances have arisen subsequent to the sentence that affect the domestic arrangements of the person who was sentenced: R v Hughes [2004] 1 Qd R 541 at [14]. There have been successful sentence appeals where evidence is adduced on appeal that was not available at the date of sentence but those cases are exceptional. In R v Maniadis [1997] 1 Qd R 593 at 595, psychiatric and psychological reports concerning the applicant showed that he was so deeply depressed at the prospect of imprisonment he was potentially at risk of committing suicide and that he was also suffering from depression at the time he committed the stalking offences for which he had been sentenced. These additional reports were admitted on the application for leave to appeal in Maniadis on the basis (at 597) that their admission showed that some other sentence was warranted in law and that the sentence, in fact, imposed was unwarranted in the sense that it was manifestly excessive. Davies JA and Helman J (with whom Fitzgerald P agreed) noted at 597:
“Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed.”
There were circumstances of urgency in Hughes at [12], when medical evidence obtained subsequent to the sentence showed that the prognosis for the disease which the prisoner had at the date of sentence had changed so that his life expectancy was probably measured in weeks or months. McMurdo J (with whom McPherson JA and Holmes J agreed) observed in Hughes at [16] that Maniadis “should not be treated as authority for the admission of evidence of matters arising after the sentence hearing unless that evidence is adduced to prove a fact existing when the sentence was imposed”.
Mr Stephensen’s appeal against his sentence could not succeed on the compassionate ground. The care arrangements for his children were a known issue at the date of sentence. The fact that the care arrangements have not turned out as he had hoped is not a proper ground on which to assert that the sentence that was imposed was not warranted in the circumstances that applied at his sentencing. His application therefore for leave to add the compassionate ground as an additional ground and his application for leave to adduce evidence relating to the compassionate ground must be refused.
Is the sentence manifestly excessive?
The most recent of the comparable authorities put before the primary judge were R v Colegate [2022] QCA 148 and R v Browne [2016] QCA 111.
The offender in Colegate pleaded guilty to the first offence of attempting to enter a dwelling house at nighttime intending to alarm a man who lived there and the second offence of, whilst intoxicated, dangerously operating a car causing grievous bodily harm to a woman who was driving her car in an attempt to get away from him. The offender was 42 years old at the time of the offences and had a serious criminal history. The offender and the complainant for the second offence had been in a relationship until the night before the incident when they argued and she told him she intended to end it. When she left the house in her car on the following morning, the offender pursued her over a distance of 19 km through suburban streets when she felt compelled to drive dangerously to get away from him. Ultimately, the offender drove on the wrong side of the road and accelerated into the rear right side of her car, causing her car to spin and crash into a fence. She suffered injuries including fractures of the skull and face, a collapsed lung, a fractured collarbone and pelvis fractures. The grievous bodily harm involved an injury which caused haemorrhages to the brain for which she spent two months in hospital and which caused her serious and ongoing problems. For the first offence, the offender was sentenced to 15 months’ imprisonment. For the second offence, he was given a concurrent term of six years’ imprisonment. He was given a parole eligibility date fixed after serving two years in custody. The sentence of six years’ imprisonment which reflected the totality of his offending for the two offences was found not to be manifestly excessive.
Even though the dangerous driving offence in Colegate had a different circumstance of aggravation, the maximum penalty was the same as for the offence committed by Mr Stephensen. The offender in Colegate had a serious criminal history, the duration of his dangerous driving was much longer than Mr Stephensen’s dangerous driving and the sentence imposed for the dangerous driving took account of the criminality of the first offence for which he was sentenced at the same time, but his sentence did reflect his guilty plea.
The offender in Browne also pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance. He was sentenced to four years’ imprisonment to be suspended after 16 months with an operational period of four years. He was unsuccessful in obtaining an extension of time for leave to appeal against the sentence. His car had been observed swerving along the road for about 150-200 m before it hit the complainant who was in the process of getting into a parked vehicle. The complainant suffered transverse fractures to the tibia and fibula of his right leg as well as cuts and grazes to his head and legs. He underwent surgery and he was still suffering from physical limitations and pain 18 months after the incident. The offender was 34 years old at the time of the offence and had a history of drug and alcohol related offences from age 23 years. He was unsuccessful in his application.
Orders
Application for leave to add an additional ground for the application for leave to appeal against sentence refused.
Oral application for leave to adduce evidence refused.
Application for leave to appeal against sentence refused.
R
Stephensen [2025] QCA 156
Application for leave to add an additional ground for the application for leave to appeal against sentence refused. Oral application for leave to adduce evidence refused. Application for leave to appeal against sentence refused: [26].
One of the decisions referred to in Browne was R v Tresize [2011] QCA 139. The offender in that case pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance. The dangerous driving took place over some 7.3 km. He was doing “burn outs” and then weaved in and out of the traffic. The vehicle crossed the double white lines and swerved into the lane in which the vehicle in which the complainant was a passenger was then travelling. The driver of that vehicle was unable to avoid the collision. He had a blood alcohol concentration of 0.19 per cent and 0.12 mg/kg of the active ingredient of cannabis in his blood. The complainant sustained a comminuted fracture of the distal right radius which required surgery and at the date of sentence continued to suffer from pain with physical limitations. The offender was 32 years old at the date of the offence and had a serious traffic history and convictions for assaults and some drug offences. The seriousness of his offending was emphasised, as he engaged in deliberate conduct in a course of driving over 7.3 km that placed at serious risk those travelling on the roadway. The sentence of five years’ imprisonment with a parole eligibility date fixed after 18 months was found not to be manifestly excessive.
The sentences in both Browne and Tresize reflected the guilty pleas and both offenders were reckless in their driving rather than driving deliberately to collide with the relevant complainant.
The sentencing judge gave some limited weight to the factors identified in the course of the sentencing remarks that were in Mr Stephensen’s favour which were the cooperation in making admissions during the trial, the probable effect that any sentence imposed would have on Mr Stephensen’s children as he was their primary caregiver (s 9(fb)(i) of the PSA), and that his ADHD and PTSD would make his time in custody more onerous than for others without his vulnerabilities. The sentencing judge made a specific finding that these conditions did not reduce Mr Stephensen’s moral culpability for the offence. He did not have the benefit of a guilty plea. He had no remorse or contrition for his deliberate conduct in running over and causing grievous bodily harm to the complainant which was aggravated by his leaving the scene before the police arrived. The analysis of the above authorities shows that the sentence imposed on Mr Stephensen was neither unreasonable nor plainly unjust.