RXY v Commissioner of Police [2025] QDC 163

"It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the Appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error... On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.[2]

• [5] Further, in McDonald v Queensland Police Service [2017] QCA 255 at [47], Bowskill J stated:

"It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the Magistrate's reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate's view. Nevertheless, in order to succeed on such an appeal, the Appellant must establish some legal, factual or discretionary error." [citations omitted]

• [6] In Forrest v Commissioner of Police [2017] QCA 132, Sofronoff P stated:2

"...an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case."

• [7] By notice filed on 16 September 2025, amended on 28 October 2025, the Appellant contends two grounds of appeal, namely:
  1. A denial of procedural fairness caused the sentence to miscarry; and
  2. The sentence imposed is manifestly excessive in all the circumstances.
• [8] The contention of the Appellant is in essence that the learned Magistrate imposed a penalty which exceeded, by a significant margin, the penalty contended for by the Prosecution and the defence lawyer without informing the parties of her intention to do so, and in that way, denied the defendant the opportunity to address the merits of such a sentence, thereby denying him procedural fairness.
• [9] In addition, it is contended that a sentence of 2 years' imprisonment with parole release after 8 months is outside the bounds of an appropriate penalty having regard to the circumstances of this case and a consideration of other cases of broad comparability. Instead, it is submitted, a penalty of 18 months' imprisonment with release after 6 months ought to have been imposed.

• [10] The Complainant, Sgt Stretton, is a serving police officer who responded to a 000 call in relation to a domestic violence incident whereby a male was seen to be dragging a screaming female along the street. He travelled alone to the nominated location. When he arrived, he met with the Appellant and Ms C.
• [11] At the time, there was a Domestic Violence Order in place (issued on 30 May 2023) which listed the Appellant as the Respondent and Ms C as the Aggrieved. It is in place until May 2028 and prohibits the Appellant from contacting or approaching Ms C.
• [12] Consequently, his contact with her on this day was in breach of the Domestic Violence Order and that is Charge 4 to which the appellant pleaded guilty before the sentencing Magistrate.
• [13] Sgt Stretton informed the Appellant and Ms C that they were detained. The Appellant responded by saying, "we are free to do what we wish", and he told Ms C to walk with him away from the police officer. Sgt Stretton repeated his direction that they were both detained and the Appellant then responded, "You touch me and it's not gonna look pretty, mate", whilst squaring off with the police officer. He then grabbed Ms C and told her to go. Again, Sgt Stretton issued a direction to not leave, and it was then that the Appellant pushed the police officer in the chest, advancing aggressively towards him and telling him to go, whilst abusing him at the same time.
• [14] The Appellant then ran at the police officer and struck him in the head with an open hand, followed by a closed fist punch to the opposite side of his head, and then a further blow and elbow strike to the head. Sgt Stretton felt immediate pain. He attempted to deploy his taser whilst the Appellant continued to strike him. The police officer, who I might add was in uniform, momentarily lost consciousness and suffered injuries as a result of the assault, namely a laceration to his lip, and bruising and swelling.
• [15] Ms C attempted to intervene and pull the Appellant away. Another member of the public stepped in to also assist, and further police were called. The Appellant then set off to walk away but was shortly afterwards apprehended by other police who arrived at the scene. Those circumstances are reflected in the charge of Serious Assault of a police officer causing bodily harm.
• [16] The Appellant continued to resist and obstruct the efforts of police to apprehend him and arrest him. He was charged with the offence of Obstruct police officer to which he also pleaded guilty.
• [17] He further refused to state his name and address despite a formal direction to do so, resulting in an offence of Contravene a direction or requirement of a police officer. As already noted, his contact with Ms C on that occasion was in breach of the Domestic Violence Order then in force. Further investigation by police revealed that the defendant became upset whilst visiting his estranged brother; he heard a fighter jet fly overhead, and in reaction to it, grabbed Ms C and dragged her into the street. He was considered at that time to be in no state to be interviewed. He was arrested and remanded in custody where he remained for 92 days until he was sentenced by the Magistrate.
• [18] At the time of sentencing, he was aged 47 years, and he had a history of prior offending recorded across 17 pages of a Queensland Criminal History. The history records persistent offending, including offences of dishonesty, drugs, and some violence, including contraventions of Domestic Violence Orders and obstruct and assault police, dating back to 2004 with an apparent break in offending between 2007 and 2013. Over the history of his offending, a variety of sentencing options were imposed upon him with little to no apparent effect on his offending conduct, including sometimes quite substantial periods of imprisonment.
• [19] At the sentencing hearing, the submission was made by the prosecutor that a sentence of 15 to 18 months' imprisonment was warranted. She referred to the circumstances that the offending was protracted, that the officer was struck several times and that he felt it necessary to deploy his taser, that the officer was acting in the execution of his duties and that the offending called for denunciation in support of her submission. The Magistrate interjected to continue the list of relevant aggravating circumstances to include that the officer was alone, that he had to be assisted by a member of the public and that it was only then that the Appellant stopped his assault on the police officer. Reference was also made to the highly relevant circumstances of the Appellant's significant criminal history including a concerning history of domestic violence offending.
• [20] On behalf of the Appellant, it was submitted that he endured a degree of disadvantage in his life. It was submitted that his parents separated when he was young and thereafter, he experienced an unsettled childhood leading to estrangement from his family. After finishing school, he joined the army. As a result of his experiences in the army he was said to have suffered post-traumatic stress, but no evidence to support that diagnosis was provided to the court.

• [21] Mr Honnef, on behalf of the Appellant in this appeal, submits that the sentence imposed was a result of the denial of natural justice. That contention arises in this way: The prosecution submitted for a penalty of 15 to 18 months' imprisonment. The legal representative for the Appellant contented for a sentence of 12 months. A submission for immediate release was initially made, and later framed as a submission that the Appellant should be released after the 92 days in pre-sentence custody already served. (In the circumstances of this case, Mr Honnef recognises that that was an ambitious submission.) The learned Magistrate imposed a sentence of 2 years' imprisonment for the offence of Serious Assault of a police officer causing bodily harm with no prior warning that the penalty imposed would exceed that which was contended for by the prosecution.
• [22] It goes without saying that a Magistrate or judge must act fairly when making decision which will deprive a person of their liberty or other rights. The High Court in HT v The Queen[3], particularly at 18 and 19, observed that there is an obligation on a judicial officer to allow a defendant the opportunity to be heard and to present their case. A defendant is entitled to know the case advanced against them and they ought to be in a position to put their case in response to the orders sought. The Court went on to state that:

"The content of procedural fairness may vary according to the circumstances of the particular case. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is to avoid practical injustice."

• [23] It is said that practical injustice arose in this case by the failure of the sentencing Magistrate to alert the parties that she regarded the appropriate penalty to be one which exceeded the contentions advanced by both the prosecution and the defendant's representative, and that the result was a penalty that was manifestly excessive.
• [24] In the context of the contentions in this appeal, it is important to understand that the process of sentencing is an exercise of discretion. A sentencing judge has an extremely wide discretion to be exercised within the limits of the principles which are applicable.[4] It necessarily involves the assessment of various factors and the courts have long recognised that it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.[5]
• [25] The sentencing Magistrate rightly regarded the offending as being serious. It is not said that she failed to take into account a relevant factor, nor that she improperly took into account an irrelevant factor in arriving at the sentencing imposed. The contention in relation to a lack of procedural fairness seems founded on the proposition that a sentencing Magistrate cannot impose a sentence which exceeds that for which the parties are content without stating that to be her intention. It is in that sense that a practical injustice is said to arise.
• [26] On my review of the material and the circumstances of the sentencing hearing, I am not satisfied that such an injustice properly arose in this case. The prosecution made submissions as to the appropriate penalty by reference to a single case (WBT v Queensland Police Service [2021] QDC 250) in which a number of other cases were also reviewed. Whilst consistency in sentencing, and in the application of principle to facts involved in a given case, is an important principle, sentencing is not about numerical equivalence. Following the contentions of the prosecutor as to penalty and the aggravating circumstances warranting the penalty submitted for, the Magistrate referred to further circumstances which, quite properly, aggravated the factual circumstances of the case for sentencing. A judicial officer is not bound to accept the contentions of any party as to the appropriate penalty. An advocate, consistent with their duty to the Court, should properly make submissions as to the appropriate sentencing response having regard to the application of sentencing principles to the facts of the case. Other cases of broad comparability assist a court to achieve an appropriate outcome, but the submissions of the prosecution do not confine a judicial officer to only that level of penalty.
• [27] The interventions of the Magistrate in response to the prosecution submission ought to have reinforced to the legal representative for the Appellant of the need to persuade the Magistrate as to the penalty which was contended for. It was not reasonable for the legal representative to have assumed that the submission of the prosecution would be accepted. The submissions are designed only to assist the sentencing court to arrive at a just penalty, not to define, nor confine, the parameters within which the sentencing can take place. Ultimately, it is the responsibility of the sentencing Magistrate to exercise the sentencing discretion having regard to the objective circumstances of the offending and the applicable sentencing principles to arrive at a sentence which is just in all of the circumstances.
• [28] In my view, upon by consideration of all of the material placed before the sentencing Magistrate and the transcript of the hearing itself, there was no practical injustice by the failure of the Magistrate to alert the parties to her view that the appropriate penalty exceeded the penalty contended for by the parties. It was, in my view, apparent on a proper reading of the transcript of the hearing that the Magistrate considered the offending to be of a degree of seriousness, committed in the context of a significant history of prior offending, having regard to the maximum penalty being 14 years' imprisonment, as to warrant a penalty which exceeded 18 months' imprisonment.
• [29] Contrary to the notion of a denial of procedural fairness, the defendant's legal representative was given the opportunity to make whatever submissions she thought warranted in her endeavour to persuade the Magistrate to impose a penalty of only 12 months. It was clear that the Magistrate required some convincing before acceding to that submission. The legal representative made submissions at large in relation to the appropriate penalty. She should not have assumed, which she seems to have done, that the penalty imposed in the independent exercise of the Magistrate's sentencing discretion would exceed no more than was contended for by the prosecution.
• [30] This case is not like the circumstances which were found to have resulted in unfairness in R v Cunningham[6], in which a period of licence disqualification was imposed without either party making submissions on the issue, in R v Kitson[7] where the sentencing judge set the parole release date at later than the mid-point with no discussion between the parties and the judge, and R v McDougall & Collas[8] involving the making of a serious violent offence declaration also without anticipating that it was in contemplation. Those are examples of cases in which the focus of unfairness was on the imposition of an additional element to the sentencing discretion beyond the mere quantum of penalty. In the present case, the focus of what is said to have occasioned unfairness is simply as to the appropriate level of penalty warranted in all of the circumstances. That is, respectfully, the purpose of making submissions as to penalty in the hearing, which the legal representatives for the Appellant had every opportunity to do.
• [31] No procedural unfairness has been established in the circumstances of this case.

• [32] I turn now to the contention that in any event, the penalty was manifestly excessive and that a sentence no greater than 18 months with release after 6 months was called for.
• [33] The restatement of the process of sentencing by the plurality in Barbaro v The Queen[9] is apposite:

"Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, '[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.'"[10]

• [34] In The Queen v Pham[11], French CJ, Keane and Nettle JJ recently described the conclusion an appellate court must reach in order to intervene for manifest excessiveness or manifest inadequacy in a sentence. Citing Wong v The Queen[12] at [58], and Barbaro at [61], their Honours said at [28]:

"Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that had been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle."

• [35] In R v Goodwin, Ex Parte Attorney-General (Qld)[13], Fraser JA observed at [5]:

"... It is necessary to mention only Barbaro v The Queen; Zirilli v The Queen, in which the High Court concluded that past sentences do not mark the outer bounds of a sentencing judge's permissible discretion[14], and that a sentencing judge who is properly informed about the facts, relevant sentencing principles, and comparable sentences "will have all the information which is necessary to decide what sentence should be passed..."[15]. Comparable sentences assist in understanding how those factors should be treated, but they are not determinative of the outcome and they do not set a "range" of permissible sentences. Whether or not a sentence is manifestly inadequate or manifestly excessive is not to be decided by reference to a predetermined range of available sentences but by reference to all of the factors relevant to sentence. Because sentencing involves a case-by-case synthesis in which past sentences may be used only as guidelines and are not determinative, there can be no underlying range of available sentences for a particular case which may be narrowed or broadened over time by subsequent sentencing decisions.

• [36] Further in Barbaro[16], the plurality said,

"[I]n seeking consistency, sentencing judges must have regard to what has been done in other cases. Those cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine the proposed sentence."

• [37] Consequently, in order to make good the contention that a sentence is manifestly excessive or inadequate, it is not enough to show that the sentence is different, even markedly different, from sentences in other cases. The difference must be such that "...the result embodied in the court's order is 'unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'."[17]
• [38] The contention of the Appellant that the sentence imposed in this case was affected by error is said to be supported by a comparison of a number of other cases of broad comparability.
• [39] In WPT v Queensland Police Service [2021] QDC 250, a sentence of 15 months' imprisonment was imposed for an offence of Serious assault police causing bodily harm, obstruct police and contravention of a domestic violence order. That case involved some factual similarities in that the offending was committed in the context of a domestic violence breach in which the Aggrieved was assaulted and the police who attended were also assaulted. The offender, a 35-year-old Torres Strait Islander man was said to have an extensive criminal history including prior violence, contraventions of Domestic Violence Orders and breaches of Court orders. Unsurprisingly, his appeal against the severity of the sentence was refused. Whilst the circumstances of that case are, on their face comparable to the present one, that case is authority only for the proposition that the sentence imposed there was not manifestly excessive.
• [40] In Dawkins v Queensland Police Service [2018] QDC 161, the offender was sentenced for 12 offences, the most serious of which was a serious assault police causing bodily harm. He violently resisted arrest, threatened to kill police, spat at police and later kicked a police officer in the eye causing bodily harm. His history of prior criminal offending was recorded across 9 pages, which also included prior violence including grievous bodily harm. He was sentenced to 18 months' imprisonment for the most serious offence with concurrent lesser terms for the other offending. On appeal, the accumulation of offending was thought instead to warrant a sentence of 20 months' imprisonment, but the parole release date was moved forward to the date of the appeal.
• [41] In his analysis of the contentions on that appeal, His Honour Judge Morzone considered a number of earlier cases of broad comparability. His analysis is promoted by the appellant in support of this appeal also. In R v Juric [2003] QCA 132 a sentence of 2½ years' imprisonment was reduced to 18 months for an offence of Assault, striking police officer in the face and spitting blood and saliva into the faces of police officers. At the time the maximum penalty was 7 years, whereas the maximum for the present offence is 14 years. This case does not support the contention of the Appellant that a sentence of 24 months was manifestly excessive in the circumstances of the present case.
• [42] Similarly in R v Brown [2013] QCA 185, a sentence of 15 months was imposed in relation to an offence of serious assault committed in the context of other offences. She was 50 years of age with a lengthy history of prior, liquor related offending. The appeal was allowed and the sentence reduced to the approximately 7 months she had then already served, which was considered to be appropriate punishment in the circumstances of that case. Again, that offence was committed at the time when the maximum penalty was 7 years. This case also does not assist the contentions of the Appellant here.
• [43] In R v Benson [2014] QCA 188 a sentence of 18 months was imposed with parole after 6 months. The violence perpetrated by the offender was significant. He punched the police officer in the eye, pulled the officer into him and choked him, then hooked his finger into the officer's eye causing substantial pain. In the efforts to restrain him, an officer was bitten on the leg. He too had an extensive criminal history including for offences of violence. He was also in breach of parole so that the sentence operated cumulatively, but only to the extent of an additional 2 days of custody. Unsurprisingly, a sentence of that magnitude for that offending was not considered to be manifestly excessive.
• [44] Finally, in Townsend v Commissioner of Police [2017] QDC 45, a sentence of 18 months' imprisonment was reduced to 16 months following a successful appeal. She was 28 years of age with a minor and insignificant criminal history. She fought against police to resist them, kicked and bit officers on the leg. She scratched the face of another officer and bit her on the breast breaking the skin.
• [45] A consideration of these cases referred to by the Appellant fails to demonstrate that the sentence imposed here is manifestly excessive or affected by error. As the jurisprudence referred to above demonstrates, sentencing is not a process of comparing and contrasting relevant circumstances to arrive at a single correct sentence within some range determined by reference to earlier cases. It is an exercise of discretion. Each of the circumstances of the cases referred to turned on the application of principle to the circumstances of those particular cases.
• [46] The violence by the defendant in this case was serious. His attack was upon a police officer who responded alone to the call for assistance following allegations of domestic violence. It is well recognised that a significant feature for sentencing in cases such as this is for the protection of police acting in the execution of their duty who routinely place themselves in harm's way for the protection of the community. Of significance in this case is that the Appellant has a criminal history recorded across 17 pages including prior violence. His history demonstrates the need, in sentencing, for a penalty which gives primacy to the need to protect the community from offending by the Appellant, and the need to provide a strongly deterrent sentence, structured to provide appropriate supervision and support once back in the community. It was acknowledged that he had a difficult background and, despite the lack of formal material to support it, that he had mental health challenges operating at the time of his offending. As much was evident in the factual circumstances. The sentencing Magistrate also properly considered the Appellant's criminal history to be a significant factor in sentencing, not just because of the fact of it, but its contents and what it said about the need to protect the community from further offending by him, and how the sentencing framework could best achieve the purposes of sentencing.
• [47] Further undermining the force of the Appellant's contentions is that the cases referred to of Juric and Brown involved offending for which the maximum penalty was 7 years. The significant uplift in the maximum penalty, introduced on 29 August 2012, applicable to the Appellant's offending, reflects the seriousness with which the offending is regarded by the community giving the legislative imprimatur to impose appropriate penalties up to the maximum of 14 years.

• [48] In all of the circumstances of this case, there was a powerful need in sentencing for community denunciation, personal and general deterrence, and protection of the community. Violence against police acting in the execution of their duty and which causes bodily harm requires a strong sentencing response to deter not only the Appellant, but also likeminded individuals.

• [49] As noted above, the contention of the Appellant that the sentencing was infected by a lack of procedural fairness is not, in my assessment of the material in this case, made out.
• [50] Further, I am unable to conclude that the sentencing discretion miscarried in this case. In my view, the sentence of 2 years' imprisonment with parole release after serving 8 months was an appropriately stern sentencing response to the particular offending involved. Whilst having proper regard to the role of comparable sentences in the sound exercise of a sentencing discretion,[18] the cases referred to do not support the contention that the penalty imposed here was outside the appropriate range of penalty in all of the circumstances of this offending.
• [51] In my review of the whole of the evidence now before me in this appeal, I am unable to conclude that the sentence imposed in the Magistrates Court on 5 September 2025 by the learned Magistrate is the result of some legal, factual or discretionary error. For the reasons articulated above, the offending was sufficiently serious as to justify the sentence imposed. No errors are demonstrated, and the sentence is not manifestly excessive. The appeal is dismissed.

[1] [2009] QCA 84; [2009] 2 Qd R 489 at [4]

[2] Citing Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 180-181.

[4] Markarian v R (2005) 228 CLR 357 at 371 [27]

[5] R v Melano; ex parte A-G [1994] QCA 523; [1995] 2 Qd R 186; Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 612 per Mason J.

[6] [2005] QCA 321

[7] [2008] QCA 86

[8] [2006] QCA 365

[9] Barbaro v The Queen [2014] HCA 2; [2014] 253 CLR 58 at [34]

[10] This passage was referred to by the Court of Appeal in R v Goodwin; ex parte A-G [2014] QCA 345 at [5], and in R v Williams [2015] QCA 276 at [11]

[11] [2015] HCA 39

[12] [2001] HCA 64; (2001) 207 CLR 584

[14] [2014] HCA 2; [2014] 253 CLR 58 at [41]

[15] [2014] HCA 2; [2014] 253 CLR 58 at [38]

[16] Barbaro v The Queen (above) per French CJ, Hayne, Keifel and Bell JJ at [41].

[17] This is essentially the statement of principle from House v The King and which has been often referred to including in Barbaro v The Queen [2014] HCA 2; (2014) 253 CLR 58 at [26]; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [58], [59]; and recently by the Court of Appeal in R v Williams [2015] QCA 276 at [7].

[18] Barbaro v The Queen [2014] HCA 2; [2014] 253 CLR 58 at [34]; R v Goodwin, Ex Parte Attorney-General (Qld) [2014] QCA 345.