R v Campbell[2016] QCA 42

SUPREME COURT OF QUEENSLAND

1. MARGARET McMURDO P:  The applicant, Dean Stuart Campbell, was convicted in June 2015 after a five-day trial in the District Court at Southport of wilful damage and unlawful grievous bodily harm.  He was sentenced to an effective term of four years imprisonment to be suspended after two years with an operational period of four years.  He has applied for leave to appeal against his sentence contending it was manifestly excessive in that the judge gave no or insufficient weight to the issue of provocation, and the delay in finalising proceedings, and other mitigating circumstances.
2. I will not repeat the details of his offending set out by Morrison JA in his reasons at [20] – [21] and [24] – [30].
3. The applicant was 36 at the time of the offending and 38 at sentence.  He had no relevant criminal history.

The sentence proceeding

4. The prosecutor at sentence emphasised that the applicant armed himself with a weapon to confront the complainant and deliberately caused damage of $954.97 to the complainant’s vehicle.  There was “no real provocation, simply a persisted request for a [long-standing] loan to be repaid.”^[1]  The complainant had lost sensation to the top half of his right hand through nerve damage and had limited movement of his thumb.  The victim impact statement demonstrated that the complainant had suffered significant emotional and physical trauma as well as financial loss arising from medical treatment and loss of employment which the complainant attributed to his injury.^[2]  He was unable to return to work for at least 21 months.  The applicant had shown no remorse, given the cross-examination of the complainant.  The prosecutor referred to cases including R v Trieu^[3] where a sentence of five years imprisonment was imposed after a trial.
5. Defence counsel at sentence emphasised the applicant’s sound employment record, punctuated only by his bankruptcy in 2012 following a downturn in the building industry.  Since the offending he had obtained full-time employment in the building industry.  Counsel tendered glowing references from the current employer, other community members, and letters to the judge from the applicant’s parents and wife.  These references supported the submission that the offending was out of character and that the applicant was a hard-working member of the community and a devoted husband and father of three children aged 12, 10 and two.  Counsel emphasised that the offence had occurred in January 2013, two and a half years earlier.  During that period the applicant had rehabilitated.  The delay and the post-offending rehabilitation should mitigate his sentence.
6. Counsel submitted that, although provocation was not a defence to grievous bodily harm, it was relevant to sentence.  The evidence at trial, including text messages, demonstrated that the complainant was pestering the applicant who had warned him that he was not welcome at the applicant’s home and that, if he did not leave, violence would follow.  The complainant did not heed that warning.  The applicant was then the primary carer for his three children, one of whom was a baby.  The complainant committed the offences under circumstances which were in fact provocation, although not providing a legal defence.  Counsel submitted that the cases relied on by the prosecutor should be distinguished as they were much more serious examples of grievous bodily harm.  Relying on cases including R v O'Dell^[4] where a sentence of two years imprisonment suspended after 12 months was imposed; R v Berryman^[5] where a sentence of three years imprisonment with release after 12 months was imposed and R v Brand^[6] where a sentence of three years imprisonment suspended after nine months was imposed, counsel urged the judge to impose a sentence of two and a half years imprisonment suspended earlier than the half-way point to reflect the mitigating features.
7. In reply the prosecutor stated that the delay in the conclusion of this matter by way of a trial was not unusual at Southport; there had been a committal at the applicant’s request; the indictment was presented on 12 December 2014 and in February 2015 it was listed for trial in June 2015.
8. The judge, in sentencing the applicant, noted that he used a bladed instrument to cause a significant injury to the complainant after deliberately damaging his vehicle.  His Honour referred to the complainant’s lasting injuries which had required him to undergo three operations and two years of occupational therapy.  This was a cowardly attack without warning.  His Honour stated, “I accept that provocation has been regarded as a mitigating factor in sentencing… [but] any provocation was not such as warranted an attack on a defenceless person with a sharp implement.”^[7]  The applicant was clearly the aggressor.  The complainant had not entered the applicant’s premises when the applicant punched him in the face as he sat in his vehicle.  This attack in a public place with a deadly weapon was a gross over-reaction to any provocation from text messages and phone calls.  The applicant admitted to police that the complainant was neither aggressive nor “a tough guy.”^[8]  In cross-examination the applicant had suggested the complainant owed money to a drug dealer and had been using and dealing in ice.  There was no evidence to support those allegations.  The applicant’s frustration with the complainant’s calls and messages was no excuse to physically attack the complainant in this way.
9. The judge referred to the applicant’s present and past employment, family responsibilities and good character evidence.  After setting out the temporal history of the prosecution of the matter, the judge found that there was no unusual delay through a failure to prosecute in a timely way.  Judging from the applicant’s background, this was not a case where he had rehabilitated since the commission of the offence; he was not a person who was likely to re-offend, the offending being out of character.  The delay between the commission of the offence and the sentence was not sufficient to require a reduction in the head sentence or to warrant an early parole eligibility date.  The appropriate sentence for causing grievous bodily harm will depend on the circumstances of the offence.  His Honour took into account the nature of the injury, the applicant’s nature, age, the absence of criminal history, that this was not an impulsive reaction, and that the applicant had gone outside armed with a weapon.  He inflicted three blows during the last of which he used the weapon.  The judge initially imposed a sentence of four years imprisonment with parole eligibility at the half way mark but, at the request of defence counsel, altered the sentence to suspend the imprisonment after two years.

The applicant’s contentions

10. The applicant’s senior counsel emphasised two matters to which, he contended, the judge gave insufficient weight.  The first was to what, for convenience, counsel referred to as provocation.  The second was delay and post-offence rehabilitation.
11. As to the first, counsel emphasised that the complainant had an intense personality and that the applicant’s wife did not like the complainant or want him in the family home.  At the time of the offending the applicant’s family life was stressful: he was unemployed and performing home duties including looking after a six month old baby while his wife was the breadwinner.  The complainant had lent money to the applicant and pestered him to repay at least some of the debt.  The complainant was also under stress, both financially and because of his faltering relationship with his wife.  He had a previous conviction for behaving in a disorderly manner in May 1998 and was fined $700 without conviction for obstructing a police officer on 24 December 2004.  In March 2005 at the time of a relationship breakdown, the complainant was subject to a domestic protection order as a result of his conduct.  This demonstrated the complainant had a volatile character.  Despite the applicant’s pleas to be left undisturbed in his home, the complainant stated he was coming to the applicant’s home where he knew he was not wanted.  This explained why the incident happened outside the applicant’s property.  The judge, having found that the applicant acted wholly out of character in committing the offences, wrongly treated provocation as being relied on as an excuse rather than as a mitigating feature.  The judge should have taken into account the stressors that were acting upon the applicant, including the complainant’s importuning.  The failure to take into account this significant factor in mitigation meant that the sentencing discretion miscarried.
12. As to delay and rehabilitation, counsel emphasised that a lengthy delay not attributable to the offender between the offending and the sentence can be a mitigating feature.  After the offending, the applicant re-built his life to eliminate the stressors present when he offended.  The judge erred in disregarding, because of his good pre-offence conduct, the applicant’s post-offence rehabilitation.  His Honour failed to appreciate, counsel contended, that the cowardly nature of this attack was because the applicant was overwhelmed by the stressors acting upon him at the time.
13. The applicant contended that this Court should, in light of those errors, grant leave, allow the appeal, set aside the sentence, re-exercise the sentencing discretion and substitute a sentence of two and a half years imprisonment suspended after 12 months.

Conclusion

14. As counsel for the applicant rightly identified, some care must be taken in considering provocation as a mitigating circumstance when sentencing for offending of this kind.  The legal concepts of provocation set out in the Criminal Code 1899 (Qld) are of limited assistance.  Provocation under s 268 and s 269 Criminal Code is not a defence to charges of unlawful grievous bodily harm and unlawful wounding as assault is not an element of those offences: Kaporonovski v The Queen.^[9]  And self-evidently nor does provocation under s 304 Criminal Code, which reduces criminal responsibility for an unlawful killing which would otherwise amount to the offence of murder to manslaughter, have relevance.  When provocation is said to be a mitigating factor in sentencing for the offences of unlawful wounding or unlawful grievous bodily harm, it has its ordinary meaning, namely “something that incites, instigates, angers or irritates.”^[10]  The weight to be given to factual provocation in its non-legal sense in sentencing for offences of unlawful wounding or grievous bodily harm will depend on the circumstances found by the sentencing judge in each case, considered in the context of established sentencing principles.  In this case those included the extent to which the offender was to blame for the offence;^[11] the presence of any aggravating or mitigating features concerning the offender;^[12] and any disregard by the offender for the interests of public safety.^[13]  Factual provocation of this kind was of some relevance here to help explain how the applicant, a 36 year old law-abiding father of three, could have come to commit such a serious offence of violence on an unaggressive friend sitting in his car.  Factual provocation may reduce the extent of an offender’s moral culpability and mitigate the sentence.  On the other hand, if the sentencing judge found that the offender was easily provoked and was at risk of violently re-offending when mildly irritated by others, concern for community protection may mean that the provocation was a feature requiring a heavier sentence.  It is a matter for the judge undertaking the often complex and difficult process of reasoned, transparent sentencing while balancing the competing considerations in each individual case as discussed by the High Court in Wong v The Queen^[14] and Markarian v The Queen^[15] to determine the relevance and weight to be given to factual provocation of this kind.
15. The sentencing judge in this case, having sat through the evidence during the five-day trial, was particularly well placed to make findings about the effect of the complainant’s behaviour on the applicant’s offending in light of the stressors then acting on him.  The judge was entitled to conclude as he did that the factual provocation in this case “was not such as warranted an attack on a defenceless person with a sharp implement” and that the offending was “a gross overreaction … to any provocation emanating from text messages and phone calls.”^[16]  The judge’s observation that the applicant’s frustration was no excuse for the attack was plainly correct.  His Honour did not misconstrue the concept of factual provocation and its relevance to sentencing for an offence of unlawful grievous bodily harm.  The judge accepted that provocation could be a mitigating feature but concluded that the applicant had grossly and aggressively overreacted to the provocation so that it was of little mitigating weight.  Although a different judge may have taken a view more sympathetic to the applicant, his Honour’s approach was open on the evidence.
16. As to delay, the sentencing judge was entitled to conclude that this was not a significant mitigating feature as the delay was not abnormal, given that the applicant had exercised his right to a committal proceeding with cross-examination of the complainant, and a trial.  As Morrison JA explains at [56] – [58], the judge also appreciated the applicant’s post-offence efforts to get his life back on track.  In light of the applicant’s blameless pre-offence history, his post-offence rehabilitation, though commendable and of relevance, was not as noteworthy as, say, a long-term drug addict who established that he has abstained from drug taking for a prolonged period and is now living a pro-social life.  Again, another judge may have given more weight to these factors, but the sentencing judge’s approach was open.
17. The applicant could demonstrate that the judge gave insufficient weight to these factors only by showing the sentence was manifestly excessive.  The cases on which the applicant relied were less serious examples of the offence of grievous bodily harm, usually with timely guilty pleas and often involving youthful offenders.  The sentence of four years imprisonment for a moderately serious example of grievous bodily harm committed by a mature first time offender without the mitigating benefit of a timely guilty plea is supported by this Court’s decision in Trieu.  The sentence of five years imprisonment imposed in Trieu supports the conclusion that the judge gave sufficient weight to the principal mitigating features: the stressors in the applicant’s life at the time of the offending and his otherwise good character and pro-social conduct making this offending out of character.  The mitigating features in this case not present in Trieu were recognised by the trial judge in imposing a four year rather than a five year head sentence.  Whilst a lesser head sentence or an earlier suspension date could have been imposed, the sentence, though not lenient, was not manifestly excessive.
18. It follows that the application for leave to appeal against sentence must be refused.
19. GOTTERSON JA:  I agree that this application for leave to appeal against sentence must be refused.  Provocation in fact, as explained by McMurdo P in her conclusion, was not misunderstood by the learned sentencing judge.  Neither it nor the factor of delay were given insufficient weight such as has rendered the sentence manifestly excessive.
20. MORRISON JA:  On 14 January 2013, Mr Okunowski drove to the house of his friend, Mr Campbell.  He wanted Mr Campbell to pay back a small amount of a debt he owed, as Mr Okunowski had run out of funds and desperately needed some money for petrol for his car.  While Mr Okunowski was sitting in his car, parked outside the house, Mr Campbell armed himself with a knife and attacked him.  He was punched through the open car window, the car door was damaged, and when Mr Okunowski got out of the car, he was cut on his wrist by the knife wielded by Mr Campbell.
21. The damage to the car door was $954.97.  The injury to the wrist severed four tendons and the radial nerve in the right hand.  It required three operations, including tendon grafts, and left Mr Okunowski unable to work for 21 months, with residual nerve damage, loss of sensation in his hand, and restricted movement in his thumb.  An MRI revealed he suffered Kleinbock’s disease, probably caused by the trauma, and he will likely undergo a fourth operation, which will further impact on the movement of the wrist.  Understandably, Mr Okunowski suffered significant psychological trauma from the attack.
22. On 19 June 2015, at the end of a five day trial, Mr Campbell was found guilty of two charges arising out of those events, and was sentenced as follows:

1. Count 1 – wilful damage – six months’ imprisonment;
2. Count 2 – grievous bodily harm – four years’ imprisonment, suspended after serving a period of two years, with an operational period of four years;
3. the sentences were to be served concurrently.

23. Mr Campbell seeks to challenge the sentence imposed for the count of grievous bodily harm, on the basis that it was manifestly excessive because the learned sentencing judge gave no weight, or insufficient weight, to two factors:

1. the “provocation” created by the stressors acting on Mr Campbell, caused in part by Mr Okunowski’s coming to the house when told not to, leading to Mr Campbell’s acting in a wholly uncharacteristic way; and
2. the degree to which Mr Campbell’s life had turned around in the two years and five months between being charged and sentenced.

Circumstances of the offences

24. Mr Okunowski lent Mr Campbell a total of about $3,600, part in 2010 and part in 2012.  On the weekend prior to the assault he rang Mr Campbell to explain his financial position and to ask for some money to be repaid.  Mr Campbell responded by phone, questioning why he had to come home to the “grief” of being importuned for money.
25. On Monday (14 January 2013), Mr Okunowski rang Mr Campbell, whose response was “a lot of yelling and screaming”, and he was “obviously quite angry”.^[17]  He said that Mr Okunowski had caused a lot of problems with his family, and he was “basically saying that I wasn’t welcome to come around”.  Mr Okunowski told him that he had no choice because his financial position was such that he needed some money and his car was low on fuel.  Mr Campbell said Mr Okunowski wasn’t welcome, he was putting the baby to sleep, “so eff off, more or less”.^[18]  Mr Okunowski said he understood that he was being told he was not welcome at Mr Campbell’s home.^[19]
26. Then followed a sequence of texts that were in evidence:^[20]

• O, 10.49 am: “U think I caused you grief bro I have said nothing to u but because u never got back to me since that Friday after saying it would be sorted. It just completely fucked everything bro. So I’d say we even if u look at it like that u didn’t proposedly do that and neither did I. For what it worth, I appologise anyway. So I can either come around to yours or meet u somewhere bro and if u want nothing to do with me after that then so be it. I would be disappointed thow. I have covered for u and stood up for u many times bro. In arguments with Kylie.^[21] Not saying u stould do the same, but don’t blow me off lke that especially when I had no ill intentions.”
• O, 10.49 am: “I have a bottle of bourban at home no coke thow (sic). Lets have a drink bro forget fighting over shit like this”;
• O, 3.56 pm: “On my way”;
• C, 4.18 pm: “Ur not welcome here at moment”;
• O, 4.18 pm: “Bro that’s fair enough but I’m on empty so have to see u now.  I have n choice or can meet u down the road. I’m fucked either way”;
• O, 4.33 pm: “What do u want to do I’m five mins away bro, almost out of fuel. I have lost Kylie can’t loose (sic) my job as well”;
• O, 4.33 pm: “Where are u I’m at your place. I have no choice……. I would be lucky if I make it home with the fuel I got”;
• C, 4.33 pm: “I’m putting baby to be , fk off , if I come out there it on”;
• O, 4.45 pm: “What do u expect from me I have nothing mate zero………..”;
• C, 4.45 pm: “Riteo im coming out in a minute , be ready to go 4 it”.

27. Mr Okunowski was sitting in his car, on the road outside Mr Campbell’s house, looking at his phone.  Mr Campbell appeared next to the car, bouncing like a boxer with his fists raised.  He said something to the effect of “get out of the car, let’s go for it”.  Mr Okunowski replied that he was not going to fight him, and they were supposed to be friends.  Mr Campbell punched him through the window, hitting and cutting the right cheek.
28. Mr Campbell again said something like “get out of the car so we can do this”, and Mr  Okunowski again said he was not going to fight him.  Mr Campbell then kneed the car door.
29. At that point Mr Okunowski got out of the car, looking at the door, and exclaiming “What the fuck”.  Mr Campbell then threw another punch at him.  Mr Okunowski had his hands up to block the blow.  The punch connected with the base of his thumb, causing a deep cut and bleeding.  Mr Campbell was holding a black bladed object in his right hand with the blade facing back down his forearm.^[22]
30. Mr Okunowski used his shirt to wrap his hand.  Mr Campbell told him “Get the fuck back in your car before I come over there and fucking finish you off”.  Mr Okunowski drove away, and was later taken to hospital.

Provocation as a mitigating factor

31. The provocation was advanced as being a matter going in mitigation, rather than offering a defence.  Thus, it was put, it explained why Mr Campbell came to act as he did, punching Mr Okunowski, kneeing the car, and attacking him with a knife.
32. The learned sentencing judge accepted that provocation can act as a mitigating factor.  In doing so his Honour referred to the principles set out by the authors of Fox and Freiberg’s Sentencing, State and Federal Law in Victoria.^[23]  They reflect the three basic ways that provocation can act in mitigation.
33. One is that it is generally regarded as reducing an offender’s culpability.  Thus a person who is provoked and thereby loses self-control may be considered to be less morally culpable in the same way as a person who is suffering from a mental disorder, under emotional stress, or under the influence of alcohol or drugs.  However, lack of control over one’s actions is generally regarded as explanatory rather than exculpatory, especially where the offender has some degree of control over their behaviour prior to committing the offence.^[24]  This aspect of the application of provocation was not advanced here.
34. Another is that the person is less culpable because there are good and legally acceptable reasons for the offender’s actions in responding to the provocative conduct.  This approach focuses upon the wrongfulness of the victim’s actions and the justifiability of the response in light of the degree of provocation.^[25]  This aspect was not advanced.
35. A third is that the person acting under provocation has lost self-control but is less dangerous because the actions were “out of character” or atypical, and therefore unlikely to be repeated.  That person is therefore less likely to be sentenced on the basis of specific deterrence.^[26]  This is the way the contention was advanced on behalf of Mr Campbell.
36. The way in which provocation is to be applied in the sentencing context was referred to by Blow J^[27] in Tyne v Tasmania:^[28]

“[28]The circumstances that a sentencing judge should take into account in relation to provocation in a murder case include the nature of the provocation, its severity, its duration, its timing in relation to the killing, any relevant personal characteristics of the offender (eg in cases of racial abuse), and the extent of the impact of the provocative conduct on the offender. When provocation is taken into account as a mitigating factor for sentencing purposes in relation to a crime other than murder, it is not common for anything to be put to the sentencing judge as to whether an ordinary person would have been deprived of the power of self control, nor as to whether or not there was time for the offender’s passion to cool. Those matters are of course relevant, but the weight to be attached to the provocation can be readily assessed by reference to the factors I have listed.”

37. More recently in Hamidzadeh v R,^[29] the Court of Appeal in New Zealand said, with respect to the use of provocation in sentencing:

“[62]The approach to provocation sentencing will be very much fact-dependent. However, relevant factors may include the nature, duration and gravity of the alleged provocative conduct; the timing of any response by the offender; whether the response was proportionate to the nature, duration and gravity of the provocation; whether the provocation was (or remained) an operative cause of the offender’s response; and whether the provocative conduct was such as to reduce the offender’s culpability in all the circumstances. We stress that these factors should not be treated as an exhaustive list and that a flexible approach is required. The requirement to demonstrate manifest injustice must be kept firmly in mind. Where a death has resulted, a high level of provocation will ordinarily be required to warrant the conclusion that something less than life imprisonment is permissible in terms of s 102.

[63]It is important to keep in mind that the circumstances in which provocation may be raised are capable of infinite variation and that other factors may be in play. Such was the case in Va v R where the Court of Appeal of Victoria was considering a sentence appeal by a man who had pleaded guilty to manslaughter. The evidence was not sufficient to establish self-defence but, in sentencing, it was necessary to consider not only the provocative conduct of the victim, but also the fact that the appellant had already been the subject of a violent assault and was responding to a real threat of further violence. Whether the offending occurred through fear rather than anger was considered to be a relevant factor.”

38. Whilst those comments were made in the context of the use of provocation in sentencing for murder or manslaughter, in my respectful view there is useful guidance to be drawn from them.  In particular I adopt the need to examine: (i) the nature, duration and gravity of the alleged provocative conduct; (ii) the extent of the impact of the provocative conduct on the offender; (iii) the timing of any response by the offender; (iv) whether the response was proportionate to the nature, duration and gravity of the provocation; and (v) whether the provocation was (or remained) an operative cause of the offender’s response.
39. The learned sentencing judge took the provocation into account, signified by the following, made in the course of the sentencing remarks:^[30]

1. the submission that Mr Campbell was “acting under provocation” was expressly referred to;
2. as to that, his Honour said that “any provocation was not such as warranted an attack on a defenceless person with a sharp implement such as you have been found to have used”;
3. Mr Campbell was “clearly the aggressor”; in that context the text messages were referred to;
4. the attack was “a gross overreaction … to any provocation emanating from [the] text messages and phone calls”;
5. Mr Campbell “may have been frustrated [by the] calls and messages” but that was no excuse for the attack; and
6. the attack “was not an impulsive reaction”, as Mr Campbell went outside armed with a weapon.

40. The stressors which senior counsel for Mr Campbell referred to fell into several categories.  First, he was (by agreement with his wife) the stay at home father of three children, one a six month old baby.  He bore the strain of looking after the children while his wife was at work.  Secondly, he was under some financial stress.  That was not quantified, except to identify that he had become a bankrupt in April 2012 and his wife was the sole breadwinner from that time.^[31]  Mr Campbell undertook casual work when he could get it, but not full time work.^[32]
41. Thirdly, notwithstanding that Mr Campbell and Mr Okunowski were good friends and spent a deal of time together, Mr Campbell’s wife resented the time they spent together at their house.  Mrs Campbell told her husband that she did not want Mr Okunowski to come over.  Mr Campbell said that he would look after it.  He did not do so, and Mrs Campbell remonstrated with him to the point where it “created a lot … of angst between us”.^[33]
42. I pause to note that whilst she said to Mr Campbell that she did not want Mr Okunowski to come over, she said no such thing to Mr Okunowski, or his wife, who was a “dear friend”^[34] of Mrs Campbell.
43. Fourthly, on the day of the assault Mr Okunowski sent many texts, and made many phone calls, to Mr Campbell.  He said he was coming over in an attempt to receive some money from Mr Campbell, as Mr Okunowski was broke.  Mr Campbell told him not to come over, and to stay away, threatening violence.  Mr Okunowski’s response was to say he had no choice, and could meet Mr Campbell elsewhere than the house, and that he did not want to fight with Mr Campbell.
44. In my respectful view, the learned sentencing judge was correct to reject the contention that Mr Campbell’s response was relevant because of provocation, such that the sentence should have been reduced.  There are a number of reasons for that conclusion.
45. First, whilst Mr Campbell had been made a bankrupt in 2012, and was unemployed in the sense that he stayed at home to look after the children while his wife worked, there was no evidence that his financial position was parlous.^[35]  Mr Okunowski was seeking a very modest amount in partial repayment of the debt owed by Mr Campbell.  There is no rational basis to conclude that Mr Okunowski’s requests to be paid something warranted the reaction that followed.
46. Secondly, it is true that Mrs Campbell had expressed her desire that Mr Okunowski not come over, but only to Mr Campbell and no-one else.  During a phone call on the day of the assault (a Monday) Mr Campbell told Mr Okunowski that he wasn’t welcome to come around, but he didn’t say why.  He merely said that Mr Okunowski had caused a lot of problems with Mr Campbell’s family, not that his wife had barred him.  In response, Mr Okunowski reiterated that his poor financial position meant he had no choice.  Then, and subsequently, Mr Okunowski was conciliatory, explaining his need and offering to meet elsewhere than Mr Campbell’s home.
47. Thirdly, nothing said by Mr Okunowski in the phone calls or texts could have reasonably suggested that he would attempt to enter Mr Campbell’s home.  The contrary is the case.  Further to that, when he arrived he stayed out on the street, sitting in his car with the door closed.  He made no attempt to approach the house.
48. Fourthly, nothing in Mr Okunowski’s phone calls or texts could rationally have suggested that he was intending or likely to engage in a physical confrontation.  In fact, he suggested that they should have a drink and not fight.
49. Fifthly, it was Mr Campbell who escalated matters, threatening violence.  While Mr Okunowski was in his car out on the street, Mr Campbell texted “Riteo im coming out in a minute, be ready to go 4 it”.  When Mr Campbell left his house, Mr Okunowski was still sitting in his car, with the door closed.  He was still in that position when Mr Campbell punched him through the car window.  Then, while Mr Okunowski was still sitting in the car Mr Campbell kneed the car door, causing nearly $1,000 worth of damage.  When interviewed by police Mr Campbell told them that Mr Okunowski was not aggressive towards him.
50. Sixthly, nothing in what Mr Okunowski said or did in the lead up to the assault suggested that he might be armed in any way.  Yet, Mr Campbell chose to arm himself with a knife before he left the house, carried it with him out to the car, and then used it when striking at Mr Okunowski’s head.  It was Mr Okunowski’s defensive posture that led to the injury being caused to his wrist and not his face.
51. Seventhly, what was done by Mr Okunowski may have been irritating but could not reasonably be said to be so offensive, even in the context of the so called stressors in Mr Campbell’s life, to produce a significant physical reaction.  Put in terms of the principles from Tyne and Hamidzadeh, the nature, duration and gravity of the alleged provocative conduct was not such as warranted a physical response.
52. Lastly, Mr Campbell’s response was a gross over-reaction to anything Mr Okunowski did, assuming what he did was provocation.  It was described so by the learned sentencing judge,^[36] and accepted as such by senior counsel before this Court.^[37]  Put in terms of the principles from Tyne and Hamidzadeh, the response was in no way proportionate to the nature, duration and gravity of the provocation.
53. In truth Mr Campbell’s reaction is not explicable by what Mr Okunowski did, but rather, perhaps, by (i) his realisation that he had not done what his wife insisted so strenuously that he do, namely fix it so that Mr Okunowski stayed away, and (ii) his concern over her reaction when she found out he had been back.  After all, her previous reaction had caused “a lot of angst” between them.
54. It was contended that the learned sentencing judge had misunderstood the point being made about provocation, treating it as though it was being suggested as a defence rather than as mitigation.  I do not accept that contention.  The references set out in paragraph [39] above show that his Honour appreciated the point but rejected it.
55. I do not consider that it can be demonstrated that the sentencing judge was in error in this respect.  This ground of challenge fails.

The delay issue

56. The delay between charge and conviction was not advanced on the basis that the learned sentencing judge should have had regard to the uncertainty created by the unresolved charges, or as it was put, the uncertainty of living in the shadow of a possible conviction, and the inability to get on with life.^[38]  Rather, it was advanced on the basis that in the interim Mr Campbell had re-established his life, found employment, and the stressors that led him to offend had been eradicated.  It was said that the learned sentencing judge paid no, or inappropriate, attention to those matters.
57. The learned sentencing judge did refer to various aspects of Mr Campbell’s change in circumstances since being charged:^[39]

• his “current and past employment”;
• his family responsibilities; and that a sentence of imprisonment would have a significant impact on his family in ways detailed by Mrs Campbell, which included the impact on the child who had been a baby at the time of the offence but was now two years old;^[40]
• the character evidence and references, which described him as “fundamentally a decent, hardworking family man, a caring, loving and responsible father and family man, a responsible, highly-paid employee”; the reference to “highly paid employee” was to the evidence that he had gained employment with a firm, from about June 2014, at a wage package of about $100,000;^[41]
• that rehabilitation was not really a feature as “judging from your background, you were unlikely to commit any other offence during that period”, and “[y]our background is such that one would not expect you to offend whilst awaiting trial”; this was an approach mirrored by that of senior counsel for Mr Campbell before this Court.^[42]

58. Those references show that the learned sentencing judge gave appropriate weight to the change in circumstances.  At the time Mr Campbell was charged he could not have been described as being in employment, let alone a “responsible, highly-paid employee”.  He was then a stay-at-home father, unemployed, and bankrupt.  The learned sentencing judge’s remarks recognised and gave weight to the very things put to him:

“A period of two and a-half years has passed since then. From – in that period of time he has gone from being bankrupt and a stay-at-home father to full-time employment in a highly responsible position.”^[43]

and

“he … has been able in the period of time since he’s been charged with this offence to be able to re-establish himself in the construction industry and …  obtain a highly responsible position”.^[44]

59. This ground of challenge fails.

Sentence manifestly excessive - comparable sentences

60. It is sufficient to refer only to R v Trieu.^[45]  That involved a 38 year old man with no criminal history, convicted at trial of unlawfully doing grievous bodily harm.  He was sentenced to five years’ imprisonment.  The complainant and Trieu were not friendly.  Trieu punched the complainant on the chin, and was punched in return.  Trieu then got a small kitchen cleaver and swung it at the complainant who put up his arm to protect himself.  He was cut by the cleaver.  Trieu desisted only when others intervened.  The injury was serious, requiring surgery and a skin graft, and leaving permanent nerve damage and fingers with limited movement.
61. de Jersey CJ said:^[46]

“Notwithstanding the applicant’s past history of employment and the absence of any prior criminal history, a sentence of five years imprisonment for an attack of this savagery, with a meat cleaver, for minimal cause, leading to serious permanent incapacity for the complainant, carried out within a private home, cannot be regarded as manifestly excessive, or indeed excessive at all. It was an appropriate sentence (cf R v Johnston [2004] QCA 12). Further, since the matter went to trial, it was entirely within the Judge’s discretion not to ameliorate that sentence by adding a recommendation in relation to parole.”

62. Trieu supports the sentence imposed on Mr Campbell.  I do not consider that it can be demonstrated that the sentence imposed was manifestly excessive.
63. Since writing the above reasons, I have had the opportunity to read Margaret McMurdo P’s comments.  I agree with the reasons expressed by her Honour.

Conclusion

64. For the reasons expressed above I would refuse the application for leave to appeal against the sentence.
65. I propose the following order:
    1. The application for leave to appeal against sentence is refused.