R v Kampf[2021] QCA 47

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  I agree with the reasons for judgment of Rafter AJ and the order proposed by his Honour.
2. [2]
   MULLINS JA:  I agree with Rafter AJ.

3. [3]
   RAFTER AJ:  On 23 June 2020 in the District Court at Rockhampton the applicant was convicted on his own pleas of guilty of armed robbery in company with personal violence (Count 1) and grievous bodily harm (Count 2).  He also pleaded guilty to the summary offence of stealing that had been transmitted from the Magistrates Court pursuant to s 652 of the Criminal Code (Qld).

4. [4]
   The applicant was sentenced to four years’ imprisonment for the offence of armed robbery in company with personal violence.  He was sentenced to seven years’ imprisonment for the offence of grievous bodily harm and the conviction was declared to be a conviction of a serious violent offence pursuant to s 161B(3) of the Penalties and Sentences Act 1992 (Qld).  The serious violent offence declaration has the consequence that the applicant must serve 80 per cent of the term of imprisonment before being eligible for parole.^[1]  He was sentenced to imprisonment for one month for the stealing offence.  The sentences were ordered to be served concurrently.  A period of 96 days pre-sentence custody was declared as imprisonment already served.
5. [5]
   The applicant has applied for leave to appeal against the sentence for grievous bodily harm on the ground that the sentence, including the serious violent offence declaration, is manifestly excessive.  The applicant submits that the learned sentencing judge erred in principle in declaring the conviction for grievous bodily harm to be a conviction of a serious violent offence and gave insufficient weight to a period of non-declarable pre-sentence custody.  The grounds of appeal are: (i) the learned judge erred at law and/or acted upon a wrong principle and/or took into account an extraneous or irrelevant consideration by applying the wrong test and/or focusing upon a need to exceed the “norm” of the category of offences involved in relation to whether a Serious Violence Offender Declaration (an “SVO”) should have been declared; (ii) the learned judge’s exercise of discretion to declare the SVO in relation to the grievous bodily harm count miscarried; (iii) the learned judge erred at law in finding that the applicable range of head sentence was seven to eight years with an SVO; (iv) the learned judge gave inadequate weight to non-declarable pre-sentence custody pertaining to the appellant; (v) the sentence imposed by the learned judge was manifestly excessive.

Circumstances of the offences

6. [6]
   On 8 July 2019 at 4.23 pm the applicant, together with Isaac Stenz and Amy Quinn, went to Dan Murphy’s at Allenstown.  Mr Stenz entered first.  The staff saw him drop a gun that he had concealed in his pants.  The applicant and Ms Quinn followed and went to the spirits section of the store.  The applicant stole a bottle of whiskey which he concealed down his pants.  That is the subject of the summary offence of stealing.  Mr Stenz also stole alcohol which he placed in his backpack.
7. [7]
   Mr Stenz then went to the Allenstown Hotel.  Before entering, he concealed the bottom half of his face with a mask or some material.  He then went to the counter in the room where the poker machines were located.  The counter was unattended.  An employee saw Mr Stenz on the CCTV monitors and went to assist him.  Mr Stenz then pulled a gun out and demanded money from the tills.  The employee complied and removed the gaming till.  The applicant and Ms Quinn caught up with Mr Stenz while the robbery was in progress.  It was accepted that there had been no pre-planning, but once the applicant and Ms Quinn became aware of the robbery, they involved themselves in it.  The applicant and Ms Quinn had taken no steps to conceal their identities.  The applicant positioned himself near the entry point to the poker machines room and acted as a lookout while Mr Stenz continued to demand money.  The employee removed the Keno till and gave that to Mr Stenz.
8. [8]
   The applicant and Ms Quinn walked into the public bar area.  Mr Stenz followed them after obtaining the money from the Keno till.  The complainant in respect of the offence of grievous bodily harm was a patron at the hotel.  He was made aware of what was occurring and went to the bar service area.  Mr Stenz, while armed with the gun, approached the bar and again demanded money.  The complainant realised that the weapon was a replica and tried to wrestle it from Mr Stenz.  Mr Stenz fought him.
9. [9]
   The applicant then involved himself by pulling out the stolen bottle of whiskey and striking the complainant to the head.  The complainant was struck three times.  The final strike came after the complainant was already on his knees.  Meanwhile Mr Stenz continued to demand money from the staff while the complainant lay prone on the floor and bleeding from the head.  The hotel employee who was the complainant in respect of Count 1 grappled with Mr Stenz, causing the gun to be dropped.  The applicant and Ms Quinn fled from the hotel and went to the Allenstown shopping centre.  Mr Stenz continued struggling with the hotel employee.  However, he fled when he heard that police were on their way.  A total of $619.10 was stolen during the robbery.
10. [10]
    The applicant and Ms Quinn caught a taxi from the Allenstown shopping centre.  All three offenders were apprehended by police acting on information from the taxi driver, within two hours of the robbery.  There was clear CCTV footage obtained from the bottle shop, the hotel and the taxi.
11. [11]
    The complainants were taken to hospital.  The hotel employee suffered a stiff neck.  The complainant in respect of the offence of grievous bodily suffered life threatening injuries.  He had to be airlifted to the Royal Brisbane Women’s Hospital.  His injuries included lacerations over his right and left temples; bruising over his right eye; a large scalp haematoma; non-displaced fractures through the parietal and temporal bones and into the sphenoid bone at the base of the skull; fractures through the left zygomatic arch laterally and posteriorly; nasal bone fracture; subdural haematoma over right lateral frontal and temporal bones, 15mm thick with 6mm midline shift; subdural blood tracking along the tentorium cerebellum (dural fold) and small subarachnoid haemorrhage.  During his admission the midline shift worsened and he underwent surgery to insert burr holes for drainage.  Without that surgery the pressure would have increased on his brain and endangered his life.

The applicant’s antecedents

12. [12]
    The applicant was 35 years of age at the time of sentence.  He was 34 years of age at the time of the offending.  He has an extensive criminal history commencing in 2002 with minor offences and spanning a period of 17 years.
13. [13]
    The applicant has a significant history of committing offences relating to property and dangerous drugs.  He has been sentenced to imprisonment on 13 separate occasions, although in some instances the sentences were ordered to be served by way of an intensive correction order or suspended subject to the completion of an intensive drug rehabilitation order.  The applicant was dealt with for breaching those orders on a number of occasions.
14. [14]
    The applicant’s criminal history includes offences of violence.  On 20 March 2014 in the Magistrates Court at Maroochydore the applicant was sentenced for a number of offences including serious assault – performing a duty imposed by law.  He was sentenced to imprisonment for one year with a parole release date on the day of sentence, having spent 124 days in pre-sentence custody.  On 13 January 2016 in the Magistrates Court at Maroochydore the applicant was sentenced for offences including two charges of going armed so as to cause fear and one charge of assault occasioning bodily harm whilst armed.  The first offence of going armed so as to cause fear occurred after the applicant had overtaken another vehicle.  In the course of doing that he waved the barrel of a weapon at the complainant.  The applicant then stopped at an intersection, got out of his vehicle and pointed the weapon at the complainant.  The second offence of going armed so as to cause fear and assault occurred later the same day when the applicant entered the office of a motel, claiming that he was owed money.  When the motel manager refused, the applicant kicked a phone and made a threat, saying that he had just been released from custody.  He left and then returned with a firearm and swung it at the manager’s head.  He ultimately struck the complainant’s forearm, causing bleeding.
15. [15]
    On 14 May 2019 in the Magistrates Court at Rockhampton the applicant was sentenced for failing to appear in accordance with a bail undertaking, two charges of unlawful use of a motor vehicle, two charges of breaking and entering premises and committing an indictable offence, six charges of stealing and seven charges of fraud.  He was sentenced to two weeks’ imprisonment for the failure to appear and 12 months’ imprisonment for the offences of unlawful use of a motor vehicle and breaking and entering premises.  He was sentenced to six months’ imprisonment for the offences of stealing and fraud.  The applicant had spent 69 days in pre-sentence custody which was declared as imprisonment already served and a parole release date was fixed on 24 June 2019.

16. [16]
    The present offending occurred within two weeks of the applicant being released on parole.  The applicant’s compliance with the requirements of parole was unsatisfactory.^[2]

Pre-sentence custody

17. [17]
    The applicant was arrested on 8 July 2019 and remanded in custody.  On the following day, 9 July 2019, his parole order was suspended and he served the remainder of the sentence imposed on 14 May 2019.  That sentence expired on 19 March 2020 and the applicant remained in custody on remand.  The applicant had therefore spent a total of 351 days in continuous custody after the commission of the offence, of which 96 days was declarable as imprisonment already served.^[3]

Submissions on sentence

18. [18]
    At the sentence hearing the Crown referred to the comparable decisions of R v Noltenius^[4] and R v Bennett^[5] and submitted that a sentence of eight years’ imprisonment was justified.  The Crown also referred to R v McDougall and Collas^[6] and submitted that a declaration that the conviction for the offence of grievous bodily harm was a serious violent offence was justified.  The Crown submitted that the features warranting a serious violent offence declaration were: that the attack on the complainant occurred in the context of an armed robbery; the attack was on a member of the public who was attempting to be a “good Samaritan”; the complainant was unsuspecting of the attack because he was occupied in the struggle with Mr Stenz; and there were multiple blows to the head and multiple fractures to the skull which were life threatening injuries.
19. [19]
    Counsel for the applicant submitted that the comparable cases relied upon by the Crown could be distinguished and referred to R v Taki.^[7]  Counsel submitted that the appropriate sentence was seven to eight years’ imprisonment with parole eligibility after the applicant had served one third of the head sentence.  Alternatively it was submitted that the sentencing judge could consider not setting a parole eligibility date.

The sentencing remarks

20. [20]
    The sentencing judge noted the applicable maximum penalties of life imprisonment for armed robbery in company with personal violence and 14 years’ imprisonment for grievous bodily harm.  His Honour said that the applicant would be given full credit for his early pleas of guilty and that the sentence would be less than might otherwise have been imposed.
21. [21]
    The sentencing judge described the applicant’s involvement in the robbery as “quite limited”.  His Honour said that the applicant was liable for the robbery by reason of his deliberate presence, acting as a lookout and ultimately inflicting violence upon the complainant in respect of Count 2 when he tried to intervene.  His Honour referred to the significant and life threatening injuries suffered by the complainant as a result of the applicant’s vicious assault.
22. [22]
    The sentencing judge referred to the applicant’s extensive criminal history and the fact that the applicant was on parole and bail at the time of the offences.  His Honour described the applicant’s performance on parole as appalling.
23. [23]
    The sentencing judge took into account that the applicant had been subjected to sexual abuse as a child which may explain his anti-social traits but did not excuse his offending conduct.
24. [24]
    The sentencing judge noted that the applicant had been afforded many sentencing options which had not assisted in his rehabilitation.  His Honour assessed the applicant’s prospects of rehabilitation as being poor.
25. [25]
    The sentencing judge considered that there were serious features of the offending that warranted a declaration that the offence of grievous bodily harm be a conviction of a serious violent offence.  His Honour therefore considered that it was appropriate that the sentence be “at the bottom of the range”.  His Honour also had regard to the fact that the applicant had been in custody for about 15 months, of which 12 months was not declarable as imprisonment already served under the sentence.
26. [26]
    The learned sentencing judge had regard to considerations of denunciation, personal and general deterrence, as well as the protection of the community.

Comparable cases

27. [27]
    The sentencing judge described the offence of grievous bodily harm as one of the more serious instances of such an offence and not dissimilar in many respects to the comparable cases of R v Bennett^[8] and R v Noltenius^[9], which were relied upon by the Crown.  His Honour recognised that each of those cases could be distinguished upon their individual facts.  The applicant submits that the comparable cases “had significant distinguishing features which made them more serious” than the present case.^[10]  It was therefore submitted that the comparable cases did not support a range of seven to eight years’ imprisonment.
28. [28]
    The comparable cases provide a yardstick against which to examine a proposed sentence.^[11]  However, as was explained in R v Dwyer:^[12]

“An approach which seeks to grade the criminality involved in such cases by a close comparison of aggravating and mitigating factors, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable, and, in truth, alien to the sentencing process.”

29. [29]
    In R v Bennett, the applicant pleaded guilty to attempted armed robbery with personal violence and grievous bodily harm.  He also pleaded guilty to 14 summary offences relating to dishonesty and drugs.  In respect of the offences of attempted armed robbery with personal violence and grievous bodily harm, he was sentenced to eight years’ imprisonment and each was declared as a serious violent offence.  He was 30 years of age at the time of sentence and 28 years old at the time of the offences.  The applicant had a lengthy criminal history which included two offences of assault occasioning bodily harm when he was aged 15 years and another offence of assault occasioning bodily harm when he was aged 19.  The 55 year old female complainant owned a small seafood takeaway shop.  The applicant’s partner worked there on a casual basis.  The offences occurred when the applicant entered the shop through the back door and persistently struck the complainant with a metal pole.  The complainant suffered a comminuted fracture of her arm.  The injuries were not life threatening but would have resulted in permanent deformity and disability if left untreated.  The applicant submits that the following features in R v Bennett make it a more serious instance of offending: the 14 summary offences; the fact that the complainant was female; there was an element of planning in the offence; the applicant was masked; the offender demanded money; the complainant tried to flee but was chased; the applicant stopped the attack only when witnesses intervened; the attack was persistent and prolonged; the applicant was subject to a bench warrant at the time of the offences; the applicant initially lied to the police in his record of interview; the applicant demonstrated a lack of remorse and there was a victim impact statement indicating significant physical and financial consequences for the complainant.
30. [30]
    The distinguishing features identified by the applicant are of no real consequence and in any event the sentence imposed in that case was eight years’ imprisonment with the offences declared as serious violent offences.  The fact that the complainant in Bennett was a 55 year old female and the complainant in respect of the present offence of grievous bodily harm was a 67 year old male is not significant.  Although there was a victim impact statement in Bennett and no victim impact statements in this matter, the present complainant suffered life threatening injuries and, as the Crown prosecutor submitted to the sentencing judge, the harm suffered by him was very plain.^[13]  Although the applicant in Bennett initially provided a false account to police, he did co-operate with the authorities.^[14]  The Court held that the applicant was unable to demonstrate that “the admittedly high sentence imposed here was manifestly excessive, even with the serious violence offence declarations, and after a timely guilty plea.”^[15]
31. [31]
    In R v Noltenius, the applicant was convicted after a trial of unlawfully doing grievous bodily harm and armed robbery.  In respect of each offence he was sentenced to seven years’ imprisonment with a declaration that the offences were serious violent offences.  The applicant was 45 years of age at the time of sentence and 42 at the time of the offences.  He had a criminal history for drug offences and dishonesty as well as wounding and assault.  The complainant had been out drinking and went to the unit of a friend and tried to awaken him by knocking on the screen door.  After a short time he was approached by the complainant and another person, who asked if he was trying to break in.  The complainant was then struck with a knife to the neck which caused him to fall to his knee.  His wallet and phone were then taken.  He suffered a life threatening injury.  The sentence was held not to be manifestly excessive.
32. [32]
    In R v Taki, the applicant was charged with burglary with circumstances of aggravation, stealing and grievous bodily harm.  He pleaded guilty to burglary with violence but not guilty to the other circumstances of aggravation, not guilty to stealing and guilty to grievous bodily harm.  He was convicted of the aggravating factors in relation to the burglary count and the offence of stealing.  In respect of the offence of burglary he was sentenced to six years’ imprisonment, and in respect of the offence of grievous bodily harm he was sentenced to five years’ imprisonment.  A parole eligibility date was set after three years.  The applicant was 29 years of age at the time of sentence and 28 at the time of the offence.  He had a minor criminal history.  The applicant broke into the complainant’s home and stole jewellery.  He assaulted the male occupant with a gun.  The complainant suffered fractures to the jaw.  The Court held that the sentence of six years’ imprisonment was plainly within range, but the applicant should be given credit for his relatively minor criminal history, limited co-operation and qualified pleas of guilty.  Accordingly, a parole eligibility date was fixed after the applicant had served two years and nine months.
33. [33]
    In this Court the applicant also referred to R v King & Morgan Ex parte Attorney-General (Qld),^[16]R v Laing^[17] and R v Houkamau.^[18]  These cases are of limited assistance.
34. [34]
    In R v King & Morgan; Ex parte Attorney-General (Qld), the sentence imposed for grievous bodily harm was six years’ imprisonment.  The offence involved a prolonged and brutal attack by the respondents who were in company.  The Court varied the sentences by adding a declaration that the respondents had been convicted of serious violent offences.  A moderate approach was adopted because of the pleas of guilty and the fact that the Court was dealing with an appeal against sentence by the Attorney-General.  It was expressly stated that the sentence of six years’ imprisonment with serious violent offence declarations should be seen as moderate.
35. [35]
    In R v Laing, the applicant was sentenced to six and a half years’ imprisonment for burglary and grievous bodily harm with intent to do grievous bodily harm.  He had been convicted following a trial.  The application for leave to appeal against sentence was refused.  The sentences were described as distinctly moderate.^[19]
36. [36]
    In R v Houkamau, the applicant pleaded guilty to robbery in company with violence and grievous bodily harm.  He was sentenced to four years’ imprisonment for the offence of robbery in company and five years’ imprisonment for the offence of grievous bodily harm.  The sentencing judge fixed a parole eligibility date 20 months after the applicant was first taken into custody.  The sentencing judge had taken into account nine and a half months’pre-sentence custody, of which only 45 days could be declared as imprisonment already served.  The sentence of five years’ imprisonment was varied to four years four months with a declaration that the applicant had served 45 days in pre-sentence custody because the sentence actually imposed did not in fact take into account the pre-sentence custody.  The sentencing judge had accepted that the range was four to five years’ imprisonment and indicated that it was appropriate to impose a sentence at the top of that range.  The effect of the sentence was that the applicant could spend as long as five years and almost 10 months in custody.  The respondent conceded that the sentence actually imposed did not give effect to what the sentencing judge had intended to achieve.
37. [37]
    A sentence is not manifestly excessive simply because it is markedly different to sentences imposed in other cases.^[20]  Cases where the Court merely refuses leave to appeal against sentence may be of limited assistance.^[21]
38. [38]
    The sentence imposed upon the applicant of seven years’ imprisonment for grievous bodily harm is less than the sentence of eight years imposed in R v Bennett where the complainant had suffered injuries that would have resulted in permanent deformity rather than the life threatening injuries suffered by the complainant in the present case.  The sentence does not indicate that there has been any misapplication of principle.  The sentence of seven years’ imprisonment was within the sound exercise of the sentencing discretion.

The totality principle

39. [39]
    The principle of totality in sentencing applies where an offender is already serving a sentence of imprisonment or where cumulative sentences are being imposed.  In such cases the sentencing judge must ensure that the total period of imprisonment adequately and fairly represents the overall criminality.^[22]
40. [40]
    The applicant submits that the learned sentencing judge gave insufficient weight to the period of pre-sentence custody dating from his arrest on 8 July 2019 to the completion of his previous sentence on 19 March 2020.  The sentencing judge said:

“I am also conscious in terms of sentence that, in this instance, you have been in custody now for about 15 months, of which 12 months is non-declarable.  The sentence will be moderated to allow some moderation for the fact that there has been a loss of opportunity in relation to parole in respect of the non-declarable portion of the sentence when you served out the sentence imposed on the 14^th of May 2019.  There will, however, be a declaration in relation to the remaining days in which you have been held in remand.”^[23]

41. [41]
    On 14 May 2019 the applicant was sentenced to a total of 12 months two weeks’ imprisonment for multiple offences.  He had spent 69 days in pre-sentence custody from 6 March 2019 to 13 May 2019 which was declared as imprisonment already served.  The Court fixed a parole release date on 24 June 2019.  The applicant was arrested on the day of the present offending on 8 July 2019 and remanded in custody.  The applicant’s parole was suspended on 9 July 2020 and he served the balance of the sentence until it expired on 19 March 2020.  There was a period of 96 days which was declared as imprisonment already served under the present sentence consisting of one day on 8 July 2019 and 95 days from 20 March 2020 to 22 June 2020.
42. [42]
    The applicant’s argument is to the effect that the period of pre-sentence custody during which he was serving the remainder of the sentence imposed on 14 May 2019 should be treated as pre-sentence custody on remand.  That submission cannot be accepted.  The applicant was in breach of the conditions of parole prior to the commission of the present offences.  The Court report^[24] states that the applicant was released on court ordered parole on 24 June 2019.  He reported to the Rockhampton Probation and Parole Office on 25 June 2019 and was directed to report in person on 4 July 2019.  The applicant failed to report as directed and was uncontactable until 8 July 2019 when telephone contact was able to be made.  The applicant could not provide a reasonable excuse for failing to report and not responding to calls from his supervising officer.  The applicant refused to provide his current address but stated that he was in Rockhampton.  The applicant was directed to report in person to the Rockhampton Probation and Parole Office by 1 pm.  He refused to report and told his supervising officer to issue a return to prison warrant for him.  The applicant presented as aggressive and abusive throughout the conversation and referred to Probation and Parole Office staff in an offensive and derogatory manner.  The report states that the applicant demonstrated poor compliance with his parole conditions, presented as hostile and abusive towards staff, and engaged in criminal activity within weeks of release on parole.  The applicant had been subject to eight previous community-based orders and his response to each was unsatisfactory in that he had shown a disregard for the conditions, failed to address substance abuse issues, and engaged in significant reoffending while under supervision.
43. [43]
    A similar argument to that advanced by the applicant was rejected by this Court in R v Pham.^[25]  The Court said that the previous sentence had been ameliorated by an immediate grant of parole which was conditional upon the applicant not committing further offences.  When the applicant reoffended he was required to undergo the punishment for the previous offence.^[26]
44. [44]
    The same point was made in R v Berns:^[27]

“The totality principle does not require the later sentencing court to discount the sentence which is otherwise considered appropriate by, for example, reducing it by the precise amount of time the offender has already served under the existing sentence. Time an offender is serving in custody under a previously imposed penalty of imprisonment is not generally treated in a like manner to pre-sentence custody on remand, whether that is formally declarable or not.

As a matter of policy, the reasons why that is so are clear. Such an existing penalty of imprisonment represents the punishment regarded as just and appropriate for separate offending. Where, as here, the offender finds themselves serving all or some of that term of imprisonment, because they have breached their parole or, for that matter, a suspended sentence, by their own further criminal offending, they should not expect the later sentencing court to factor that earlier sentence into account, in some precise mathematical way, by reducing the sentence for the later offending. They are the masters of their own destiny; it is as a result of their continuing criminal offending that they find themselves in this position.

Nevertheless, the requirement to impose a penalty which is just in all the circumstances calls for some amelioration of the later sentence, having regard to the cumulative effect of the penalties imposed and the need to avoid a crushing sentence.”

45. [45]
    The sentence of 12 months and two weeks’ imprisonment imposed on 14 May 2019 was in respect of offences of failing to appear, unlawful use of motor vehicles, breaking and entering premises, stealing and fraud.  The offences were committed in December 2018 and February and March 2019.  The applicant was released on parole on 24 June 2019 and his compliance with the conditions of the parole order was unsatisfactory.  The present offending on 8 July 2019 was within about two weeks of the applicant’s release on parole.  The sentencing judge had appropriate regard to the principle of totality.

Serious Violent Offence Declaration

46. [46]
    The applicant submits that the sentencing judge applied an incorrect test by considering whether the offending was “beyond the norm”. 
47. [47]
    Although it is not a ground of appeal, the applicant also submits that an offender’s criminal history is “arguably not relevant” to the exercise of the discretion to declare a conviction to be a conviction of a serious violent offence.^[28] 

Did the sentencing judge erroneously consider whether the offending was “beyond the norm”?

48. [48]
    At the sentence hearing the Crown prosecutor and defence counsel made submissions on the serious violent offence issue based on R v McDougall and Collas.^[29]  In that case the Court noted that differences of opinion had emerged in the decided cases in relation to whether the discretion to declare that an offender has been convicted of a serious violent offence can be exercised when the circumstances of the offence do not take it beyond the “norm” for the type of offence being considered.^[30]  The Court made a number of observations to assist sentencing courts.^[31]  The Court said that a discretionary declaration that an offence is a serious violent offence will usually be reserved for the more serious offences that, by their nature, warrant a declaration.  The Court also said that: “where the circumstances of the offence do not take it out of the ‘norm’ for that type, and where the sentencing judge does not identify matters otherwise justifying the exercise of the discretion, it is likely that the overall result will be a sentence which is manifestly excessive …”
49. [49]
    The sentencing judge was not referred to the judgment of this Court in R v Free; Ex parte Attorney-General (Qld)^[32] which was delivered on 31 March 2020, almost three months before the sentence in this matter on 23 June 2020.  In R v Free; Ex parte Attorney-General (Qld), the Court traced the first reference to the expression “beyond the norm” to the reasons of Williams JA in R v De Salvo.^[33]  In R v Free; Ex parte Attorney-General (Qld), the Court held that the sentencing judge had erred in the exercise of discretion “… by focussing on a perceived need to find factors which take the case outside the norm for the type of offence; rather than considering more broadly whether there are circumstances of the case which aggravate the offence in a way which suggests the protection of the public or adequate punishment required a longer period in actual custody before eligibility for parole than would otherwise be required.”^[34]  The Court observed that the “outside the norm” test was a frequently used expression, but that such a focus was too narrow.^[35]  The Court explained that consideration of whether particular offending is “outside the norm” can obscure the need to consider whether other factors such as community protection or adequate punishment warrant consideration of an offence being declared as a serious violent offence.^[36]
50. [50]
    Where the sentencing court imposes a sentence of five years’ imprisonment or more, but less than 10 years’ imprisonment, the discretion to declare an offender to be convicted of a serious violent offence is provided by s 161B(3) of the Penalties and Sentences Act 1992:

“(3) If an offender is –

1. (a)
   convicted on indictment of an offence –

1. (i)
   against a provision mentioned in schedule 1; or

2. (ii)
   of counselling or procuring the commission of, or attempting or conspiring to commit, an offence against a provision mentioned in schedule 1; and

2. (b)
   sentenced to 5 or more, but less than 10, years imprisonment for the offence, calculated under section 161C;

the sentencing court may declare the offender to be convicted of a serious violent offence as part of the sentence.”

51. [51]
    The offence of grievous bodily harm is listed in Schedule 1.^[37]
52. [52]
    In considering whether a serious violent offence declaration was justified, the sentencing judge said:

“The Crown, of course, contend for a sentence in the order of eight years with a serious violent offender declaration.  [Counsel], for you, contends for something in the order of seven to eight years with no SVO.  When considering whether or not a serious violent offender declaration ought be made, the Court needs to consider whether there is something about the nature of the offending that takes it beyond the norm of what these sorts of offences involve.  A critical matter, of course, would be whether the offence has features warranting a sentence requiring a defendant to serve 80 per cent of a head sentence before being able to apply for parole.

There are, in my view, factors in this instance that do warrant the imposition of an SVO and I do intend to make one.  They include, in particular, the cowardly and viciousness of the attack upon the complainant in the setting.  I am not going to restate the matters I have earlier identified but it is obvious and it ought to have been obvious to you that you did not need to use a weaponised attack to achieve the outcome that you sought.  He was, plainly, someone who could have been fended off with little difficulty by you, affected by alcohol or otherwise.

The attack itself, as I said, was upon a vulnerable individual, someone who was not even apprehending that he was to be attacked in the manner in which he was.  He was not able to take any defensive action to prevent the nature of the injuries that were inflicted.  The strike on the ground was entirely gratuitous and unnecessary, putting aside the gratuitous and unnecessary nature of the earlier blows.  Of course, the blows themselves were of such a kind as to give risk to the life of the complainant who was simply acting as a good Samaritan using what could only be best described as minimal force in his intervention and wrestling with Mr Stenz as he effected the robbery.

This is, in my view, one of the more serious instances of an offence of this nature and is, I think, not dissimilar in many respects to the comparators placed before me by the Crown, including R v Bennett [2016] QCA 31 and R v Noltenius [2014] QCA 303.  Each of the cases, of course, can be distinguished upon their individual facts and the matters have been the subject of argument between myself and counsel already.  However, the ultimate head sentence, of course, is reinforced by recognition of the fact that an SVO calls for sentencing at the bottom of the range.”

53. [53]
    If, as the applicant submits, the sentencing judge imposed a requirement that the offence of grievous bodily harm be “outside the norm”, then the test was expressed too narrowly.  However, it is clear that the sentencing judge had regard to the serious nature of the attack and that the complainant was a vulnerable individual who did not apprehend that he was going to be attacked.  He was unable to take any defensive action and the strike while he was on the ground was entirely gratuitous and unnecessary.  The sentencing judge was entitled to conclude that there were features of the offending that warranted a declaration that the conviction for grievous bodily harm was a conviction of a serious violent offence.  There was no error in the exercise of the sentencing judge’s discretion to make the declaration.

The relevance of an offender’s criminal history

54. [54]
    The applicant submits that observations made by McPherson JA in R v De Salvo^[38] and R v Orchard^[39] support the contention that an offender’s criminal history is not relevant to the exercise of discretion to declare an offence to be a serious violent offence.
55. [55]
    The sentencing judge made no reference to the applicant’s criminal history when considering the serious violent offence issue.  His Honour focused on whether the offence had features warranting the imposition of a sentence that would require the applicant to serve 80 per cent of the term of imprisonment before being eligible for parole.
56. [56]
    The same point raised by the applicant was argued in R v Woods.^[40]  In that case, Fraser JA, with whom Philippides JA and Burns J agreed, said:

“[27] The appellant argued that this was not an offence ‘beyond the norm’ such as could justify a serious violent offence declaration.  The appellant submitted that the offence of wounding is inherently violent, that the use of a knife in an offence of that kind is not uncommon, and that the circumstances of this case could not be regarded as so violent that a declaration was warranted.  The appellant also referred to statements by McPherson JA in De Salvo which questioned whether previous offences could support a declaration and his Honour’s conclusion in that case that the criminal record of the offender did not afford a basis for a declaration.

[28] As the respondent submitted, in R v Orchard, Jerrard JA explained that a decision, cited by McPherson JA in De Salvo, R v Keating, indicated that a declaration may be appropriate where there is a perceived need to protect the community and held that, ‘an offender’s criminal history may tend to show the offence for which the sentence is being imposed in a serious light, so that a need is perceived to protect the community’.  McPherson JA agreed with Jerrard JA.  In R v Parker, Gotterson JA, with whose reasons I and Flanagan J agreed, reasoned that McPherson JA’s observations in R v Orchard concerned a case where the offender’s record of violent crime was the decisive consideration for making a declaration and there was no error in making a declaration upon the basis that it was justified by the scale of trafficking offence in Orchard and that being the second occasion of like offending on parole.”

57. [57]
    In sentencing an offender for an offence that involved the use of violence or that resulted in physical harm to another person, the Court is required to have regard primarily to the factors in s 9(3) of the Penalties and Sentences Act 1992.  Some factors relate to the circumstances of the offence, including the nature or extent of the violence used.^[41]  Other factors relate to the offender, such as the offender’s past record,^[42] and the antecedents, age and character of the offender.^[43]  The previous convictions of an offender must be treated as an aggravating factor if the sentencing court considers that they can reasonably be treated as such, having regard to the nature of the previous conviction and its relevance to the present offence and the time that has elapsed since the conviction.^[44]
58. [58]
    A declaration that the offender has been convicted of a serious violent offence is “part of the sentence”.^[45]
59. [59]
    The task of sentencing involves taking into account all relevant factors and arriving at a single result.^[46]  It follows that an offender’s criminal history may be relevant to the exercise of discretion whether or not to declare a conviction for an offence to be a conviction of a serious violent offence.
60. [60]
    There was no error by the sentencing judge.

Conclusion and order

61. [61]
    The sentence of seven years’ imprisonment with a declaration that the conviction was a serious violent offence is not manifestly excessive.  For the reasons given, the application for leave to appeal against sentence should be refused.