R v Pain[2022] QCA 233

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  The appellant, Mr Pain, was convicted after trial before a jury of one count that on 4 February 2019 with intent to disable the complainant he unlawfully struck the complainant with a projectile in contravention of s 317(1)(a) and (f) of the Criminal Code (Qld) with the serious organised crime circumstance of aggravation.  The serious organised crime circumstance of aggravation required that Mr Pain be sentenced in accordance with s 161R of the Penalties and Sentences Act 1992 (the Act).
2. [2]
   Mr Pain was sentenced to six years’ imprisonment as the base component of the sentence and it was declared that he was convicted of a serious violent offence.  Presentence custody of 282 days between 8 February and 3 October 2019 and between 13 June and 26 July 2021 was declared to be imprisonment already served under the sentence.  The base component was ordered to be served concurrently with the sentence imposed on Mr Pain on 13 February 2020.  The mandatory component of the subject sentence is seven years’ imprisonment to be served cumulatively on the base component and wholly in a Corrective Services facility.  A control order was made pursuant to s 161V of the Act to commence on Mr Pain’s release from custody and to remain in force for three years.
3. [3]
   Mr Pain appeals against his conviction on the ground that a miscarriage of justice was occasioned by the direction that the availability of the excuse of compulsion under s 31(1)(c) of the Code could be negatived, if the jury were satisfied that the exception or qualification found in s 31(2) of the Code was established.  The appeal ground primarily turns on the construction of s 31(2) of the Code.

The trial

4. [4]
   This was an unusual trial in that the complainant did not give evidence and the trial proceeded on the basis of extensive mutual admissions of facts and CCTV footage of the relevant incident.  Mr Pain gave evidence.
5. [5]
   The admitted facts included the following.  At approximately 4.48 pm on 4 February 2019 at Logan Hyperdome, the complainant was struck by a bullet in his left upper thigh from a handgun held and discharged by Mr Pain and that bullet was a projectile within the meaning of s 317(1)(f) of the Code.  Mr Pain and nine other persons who could be seen in the CCTV footage recorded at the Hyperdome at the relevant time were members of the Rebels Motorcycle Club (Rebels).  The complainant who could also be seen in the same CCTV footage was an office holder in the Beenleigh chapter of the Bandidos Motorcycle Club (Bandidos).  As at 4 February 2019 there was rivalry between the Logan chapter members of the Rebels and the Beenleigh chapter members of the Bandidos.  At the time Mr Pain discharged the projectile, he was the driver and only occupant of a white Toyota Aurion sedan that also can be seen in the CCTV footage.  The complainant had taken possession of a machete from a bronze coloured Mazda SUV which was seen in the CCTV footage stopped beside the complainant when he was shot.
6. [6]
   Mr Pain’s evidence included the following.  Mr Pain had gone to the Hyperdome to attend a meeting.  The appellant and another Rebels member sat down at a coffee shop with the complainant to work out some issues.  The meeting ended.  A short while later the complainant was armed with a knife and ran off and the Rebels members chased the complainant.  Mr Pain went to and got into his car and drove out to a roundabout keeping a lookout for his friends.  He drove onto Leda Drive and saw them heading up towards JB Hi-Fi on Leda Drive.  As he negotiated the roundabout, he saw his friends starting to go backwards and saw the complainant running at full pace towards his friends carrying a machete with the blade forward and the complainant was yelling.  Mr Pain swerved his car to position it between the complainant and his friends with the intention of scaring the complainant off.  The complainant went behind a car and the appellant lost sight of him.  As he was worried that he or his friends might be struck with the machete, he reversed the car and got his handgun from the centre console.  A bronze coloured car rushed up and the complainant went to the passenger side of it and stood there yelling.  Mr Pain aimed the gun towards the ground and discharged it, intending to scare the complainant away and not intending to hit him.  The complainant took off towards the shopping centre away from Mr Pain and his friends.  Mr Pain drove off.  Mr Pain rejected the prosecutor’s suggestion to him in cross-examination that he shot at the complainant to prevent the complainant from getting away from the Rebels members.
7. [7]
   The prosecution case at the trial was that Mr Pain was part of a group of men that confronted and pursued the complainant and that Mr Pain and the other men intended to inflict serious physical violence on the complainant and, when Mr Pain aimed the handgun at and shot the complainant in the left thigh, he did that act with the specific intent to disable the complainant, so that the complainant could not get away and could be assaulted by the group of men.
8. [8]
   Even though Mr Pain admitted at the trial that he fired the gun, the defence contention was that he was not criminally responsible for the projectile striking the complainant, as on the whole of the evidence (including Mr Pain’s evidence) the prosecution could not prove that the only rational inference at the time Mr Pain fired the gun was that he had the specific intent to disable the complainant, as it was also a rational inference that Mr Pain’s intent was to scare or alarm the complainant.  There were several defences or excuses under the Code raised on the evidence for consideration by the jury.  The learned primary judge summed up to the jury on accident (s 23(1)(b) of the Code), self-defence under s 271(1) of the Code, aiding in self-defence (s 273 of the Code), compulsion (s 31(1)(c) of the Code), prevention of repetition of insult (s 270 of the Code), preventing a breach of the peace (s 260 of the Code) and prevention of crimes and offences for which an offender may be arrested without warrant (s 266 of the Code).

Section 31 of the Code

9. [9]
   The relevant parts of s 31 of the Code are:

“(1) A person is not criminally responsible for an act or omission, if the person does or omits to do the act under any of the following circumstances, that is to say—

1. (a)
   …

2. (b)
   …

3. (c)
   when the act is reasonably necessary in order to resist actual and unlawful violence threatened to the person, or to another person in the person’s presence;

4. (d)
   …

3. (2)
   However, this protection does not extend to an act or omission which would constitute the crime of murder, or an offence of which grievous bodily harm to the person of another, or an intention to cause such harm, is an element, nor to a person who has by entering into an unlawful association or conspiracy rendered himself or herself liable to have such threats made to the person.”

10. [10]
    There is no definition of “unlawful association” in the Code.
11. [11]
    The trial judge provided the jury with the content of s 31(1)(c) and s 31(2) of the Code and then stated:

“So in certain circumstances, the law offers a defence if a person is compelled to act to resist the violence of others. The Code calls this compulsion, and says, for present purposes, that a person is not criminally responsible for an act if that person does the act because it is reasonably necessary to resist a threat of actual and unlawful violence to themselves or, to another person in their presence.

In this case, you must consider whether:

3. (1)
   actual violence was threatened to Pain or to another person in Pain’s presence; and

3. (2)
   the violence threatened was unlawful; and

3. (3)
   the act done by Pain was reasonably necessary in order to resist the threatened violence; and

3. (4)
   Pain entered into an unlawful association and by doing so, rendered himself liable to have such violence threatened to him.”

12. [12]
    The trial judge instructed the jury that to prove the defence of compulsion did not apply, the prosecution had to prove any one of four things that corresponded to the four matters the jury were directed to consider.  Relevantly, in relation to the fourth matter, the jury were instructed that the defence did not apply, if the prosecution proved beyond reasonable doubt:

“Pain entered into an unlawful association and by doing so rendered himself liable to have such violence threatened to him. That is, in this case, that the defendant at the time the offence was committed, or at any time during the course of the offence, Pain was a participant in a criminal organisation and knowingly committed the offence in association with one or more persons who were participants in a criminal organisation, as I have explained earlier.”

13. [13]
    The impugned direction for the purpose of this appeal comprises the fourth matter the jury were directed to consider and the specific instruction given to the jury as to what the prosecution had to prove beyond reasonable doubt in order to exclude the defence on the basis of the fourth matter.
14. [14]
    The effect of that direction meant that the trial judge construed s 31(2) as not extending the protection of s 31(1)(c), if the jury were satisfied beyond reasonable doubt that Mr Pain was a participant in a criminal organisation and exposed himself to the threats made by the complainant, as a result of his entry into an unlawful association.

The construction of s 31(2) of the Code

15. [15]
    There is no issue that the exceptions in s 31(2) may have potential application where a defendant relies on s 31(1)(c) of the Code: Pickering v The Queen (2017) 260 CLR 151 at [7] and [41].
16. [16]
    The appellant submits that s 31(2) of the Code ensures that a defendant who has entered into an unlawful association or conspiracy to do something unlawful cannot seek exculpation for an act on the basis that he did the act due to a threat or threats made by one or more of those involved in the unlawful association or the conspiracy into which he entered.
17. [17]
    The appellant submits that, on the evidence before the jury, s 31(1)(c) was raised by reference to the threat or threats by the complainant’s actions with the machete.  On the assumption that the Rebels was an unlawful association within the meaning of s 31(2), the complainant was not a member of it, as he belonged to the rival club, the Bandidos.  It is therefore submitted that s 31(2) was not engaged and the trial judge was in error in giving the impugned direction.
18. [18]
    The appellant was unable to find any direct authority which supported this construction, but did find some obiter dicta in the joint judgment of Winneke CJ and Pape J in R v Hurley and Murray [1967] VR 526 at 533 which suggested that the appellant’s construction of s 31(2) accorded with a similar exception to duress at common law.  One Murray was charged with being an accessory after the fact to the escape of two prisoners from gaol.  The prisoners went to Hurley’s house.  Hurley met Murray at a hotel where neither prisoner was present and asked Murray to assist him in obtaining a car in which the prisoners could leave Victoria.  Murray voluntarily went to Hurley’s house and offered his assistance.  It was found therefore (at 532) that, on the facts, there could be no possible duress exerted by either prisoner on Murray causing him to participate in the transaction and the trial judge was right in refusing to allow the defence of duress to be put to the jury on behalf of Murray.  It was therefore not necessary for the Court to consider an exception to the defence of duress where the defendant had voluntarily joined a criminal organisation knowing of its purpose.  Winneke CJ and Pape J stated (at 533):

“Nevertheless, we are persuaded that it is both good law and good sense, and that a person who without threat of death or serious violence voluntarily make himself a party to a criminal enterprise cannot excuse his criminal conduct in participating in that enterprise by showing that after he had embraced the cause he was subjected to threats of violence at the hands of the other parties to ensure that he did not resile from the bargain he had voluntarily entered into”.

19. [19]
    Winneke CJ and Pape J also noted (at 533) that the exception to the defence of duress which they embraced as good law was reflected in s 31 of the Code.
20. [20]
    The respondent submits that the focus of the qualification in s 31(2) of the Code must be on the nature of the unlawful association or conspiracy and whether as a consequence of the participation in such an association or conspiracy, a defendant is liable to be the subject of a threat regardless from where the threat emanates.  In other words, the defence under s 31(1)(c) is excluded if the threat of violence was directed at a defendant, because the defendant was a member of an unlawful association or conspiracy.
21. [21]
    The problem with the construction advanced by the respondent is that it opens up an area for factual inquiry with no guidance within the provision as to the nature or extent of the connection between the threat of violence and a defendant’s membership of an unlawful association or conspiracy.  In contrast, the construction advanced by the appellant confines the factual inquiry as to whether the threat of violence emanates from those within the unlawful association or conspiracy.  That makes the nexus between the threat of violence and the membership of the unlawful association or conspiracy that the threat comes from a fellow member of the unlawful association or conspiracy.  That is also consistent with the application of the exception to a defendant who has “entered into” the unlawful association or conspiracy which suggests that it is merely being a member of the unlawful association or conspiracy that triggers the exception where the threat comes from a fellow member.
22. [22]
    The trial judge was in error in giving the impugned direction.
23. [23]
    It was not the subject of a wrong decision on a question of law, as it is apparent that the construction of s 31(2) of the Code advanced on behalf of Mr Pain on this appeal did not occur to Mr Kimmins of counsel who represented Mr Pain during the trial and was not raised in argument, when the trial judge gave counsel the opportunity to consider the written directions the trial judge proposed to give the jury on the law (which included the impugned direction).

Was there a miscarriage of justice?

24. [24]
    The appellant submits there has been a miscarriage of justice because there was a reasonable possibility that the jury put aside the consideration of s 31(1)(c), because they were satisfied the appellant had entered into an unlawful association with the Rebels.  The appellant submits that each defence required the jury to consider different issues in order to conclude that the prosecution had excluded that defence beyond reasonable doubt and it did not follow from the fact that the jury excluded the other defences that they would have excluded the defence under s 31(1)(c), if the impugned direction had not been given.
25. [25]
    The appellant seeks to show that the issue to be considered under s 31(1)(c) of the Code was not the same issue that the jury had to consider under s 271(1) of the Code.  Pursuant to s 271(1) of the Code, self-defence against an unprovoked assault is excluded by the prosecution if the jury were to conclude beyond reasonable doubt that the force used either was intended to cause death or grievous bodily harm or was such as was likely to cause death or grievous bodily harm.  That latter objective aspect of the defence under s 271(1) does not apply to the defence under s 31(1)(c) which required the jury to consider whether the firing of the gun that resulted in the bullet hitting the complainant in the thigh was reasonably necessary in order to resist the threatened violence from the complainant, if the jury were otherwise satisfied that actual violence was threatened to Mr Pain or to his fellow Rebels members in Mr Pain’s presence and the threatened violence was unlawful.
26. [26]
    The fact that a jury may reach different conclusions with reference to s 31(1)(c) and s 271(1) of the Code where both defences are raised on the evidence was considered by Fraser JA (with whom Holmes CJ and Gotterson JA agreed) in R v Pickering [2016] QCA 124 at [13].  Even though the Court of Appeal’s decision in Pickering was overturned on appeal by the High Court, the observations made by Fraser JA at [13] were not the subject of the successful appeal to the High Court in Pickering.
27. [27]
    As Mr Pain was charged with the circumstance of aggravation that he was a participant in a criminal organisation, the fact that Mr Pain was a member of the Rebels was a prominent matter at the trial and of which the jury had to be satisfied beyond reasonable doubt to convict him of the offence with the circumstance of aggravation.  The impugned direction directed the jury that if they were satisfied Mr Pain at the time the offence was committed was a participant in a criminal organisation (which is defined in the Code for the purpose of the relevant circumstance of aggravation) then that may satisfy them that he had entered into an unlawful association that rendered him liable to the threat of such violence that may have been threatened to him by the complainant.  That gave the jury a path to excluding s 31(1)(c) of the Code as a defence as a result of the impugned direction without considering the essence of the defence under s 31(1)(c) of whether the firing of the gun in the circumstances of the threat of actual and unlawful violence from the complainant was reasonably necessary.
28. [28]
    Unless the jury had to consider the issue that was the essence of the defence under s 31(1)(c) in considering any of the other defences, it is arguable that the impugned direction deprived Mr Pain of the jury’s giving proper consideration to the defence raised on the evidence under s 31(1)(c).  The same objective aspect of the defence under s 271(1) of the Code that does not apply to the defence under s 31(1)(c) was also common to the defences under s 270 and s 273 of the Code.  The defence under s 23(1)(b) of the Code did not require the jury to consider the issue which is the essence of the defence under s 31(1)(c).  That means that the fact that jury excluded the defences beyond reasonable doubt that were raised under s 23(1)(b), s 270, s 271(1) and s 273 of the Code did not mean the outcome of the consideration of the defence under s 31(1)(c) without the impugned direction was inevitable.
29. [29]
    For the purpose of the defence under s 260 of the Code, there had to be a breach of the peace.  The trial judge directed the jury that the complainant’s actions with the machete on Leda Drive, depending on what the jury found them to be, could amount to a breach of the peace.  That defence could be excluded, if Mr Pain used force that was not reasonably necessary to prevent the continuation or renewal of the breach of the peace.  The defence under s 260 could also be excluded, however, if the discharge of the gun was not “reasonably proportioned to the danger to be apprehended from” the continuance or renewal of the breach of the peace.  As the jury could therefore have excluded the defence under s 260 by a path that did not require consideration of the issue that is the essence of the defence under s 31(1)(c), the exclusion of that defence cannot be relied on for a conclusion that the jury would have excluded the defence under s 31(1)(c), if the impugned direction had not been given.
30. [30]
    One other defence remains to be considered which is s 266 of the Code which relevantly provides:

“It is lawful for any person to use such force as is reasonably necessary in order to prevent the commission of an offence which is such that the offender may be arrested without warrant …”

31. [31]
    The jury were directed that the first issue for them to consider was whether the complainant was committing any offence such that he could be arrested without a warrant.  They were told that any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person is guilty of an offence and liable to be arrested without a warrant.  Evidence was before the jury from the cross-examination of an investigating police officer that the complainant had been charged and pleaded guilty to that offence.  As the fact of conviction was the subject of oral evidence rather than being proved by a certificate of conviction, the jury were told it was for them to decide on the whole of the evidence whether the complainant was committing that offence, if they found he was armed with a machete on Leda Drive.  The second issue they were told to consider was whether Mr Pain’s use of force was reasonably necessary to prevent the commission of the offence and that was an objective test for the jury to determine on the whole of the evidence.
32. [32]
    It is reasonable to infer that the jury did not exclude the defence under s 266 of the Code on the basis of the first issue.  The conduct of the complainant that gave rise to the offence of being armed with a machete on Leda Drive for the purpose of s 266 was the same conduct that arguably gave rise to the defence under s 31(1)(c) of actual violence that was unlawful that was threatened to Mr Pain or to another person in Mr Pain’s presence.  On the evidence, it is reasonable to conclude therefore that the basis on which the jury excluded the defence under s 266 was that the discharge of the gun was not reasonably necessary to prevent the commission of the offence of going armed in public so as to cause fear.  The different characterisation of the same conduct of the complainant as committing an offence for which the offender may be arrested without a warrant for the purpose of s 266 and as actual and unlawful violence threatened to the person or to another person in the person’s presence for the purpose of s 31(1)(c) does not affect the application of the reasonable necessity test for assessing objectively the response of the discharge of the gun with intent to disable.
33. [33]
    It was therefore inevitable that, without the impugned direction, the jury would have excluded the defence under s 31(1)(c) of the Code for the same reason that the jury excluded the defence under s 266 of the Code.
34. [34]
    An error in the giving of a direction in a criminal trial will not amount to a miscarriage of justice unless it resulted in prejudice to the defendant: Hofer v The Queen (2021) 95 ALJR 937 at [41].
35. [35]
    The appellant has not shown there has been a miscarriage of justice due to the impugned direction, as no prejudice was caused to Mr Pain, as a result of the error made by the trial judge in directing the jury on the exception in s 31(2) of the Code.  The appeal against conviction must be dismissed.  It is therefore necessary to consider the application for leave to appeal against the sentence.

Grounds for sentence leave application

36. [36]
    There are three grounds relied on for the application:

3. (1)
   the trial judge failed to resolve factual disputes and/or matters of importance relevant to the sentencing;

3. (2)
   the base sentence was manifestly excessive;

3. (3)
   the trial judge erred in declaring the offence was a serious violent offence.

Mr Pain’s antecedents

37. [37]
    Mr Pain was 30 years old at the date of the offending.  His criminal history commenced when he was 17 years old.  The first significant entry was for grievous bodily harm committed on 10 June 2007 when he was 18 years old.  He was sentenced to 12 months’ imprisonment to be served by way of an intensive correction order and ordered to pay compensation of $5,000 to the victim.  He had punched the victim twice in the face and fractured his zygoma which resulted in surgery and the insertion of a titanium plate.
38. [38]
    Mr Pain committed further minor offending between 2011 and 2014.  He was dealt with in the Supreme Court on 20 August 2015 for possession of 16 grams of pure methylamphetamine which was partly for commercial use and partly for personal use (aggravated drug possession).  He pleaded guilty and was sentenced to three years’ imprisonment.  He had been in custody since 29 March 2015 and was given a fixed parole release date of 29 March 2016.  At the same time he was sentenced for other minor drug offences, unlawful use of a motor vehicle, fail to stop motor vehicle and two charges of assault or obstruct police officer.  By this stage of his offending Mr Pain was addicted to methylamphetamine.
39. [39]
    Subsequent to being sentenced in the Supreme Court, Mr Pain was dealt with in the Magistrates Court for dangerous operation of a motor vehicle which had been committed on 22 December 2014 for which he was sentenced to nine months’ imprisonment concurrent with his existing sentence and he was given the same parole release date of 29 March 2016.  There was some further minor offending for which Mr Pain was dealt with between August 2016 and December 2018.  His parole had been cancelled in July 2016, but he obtained parole again on 9 June 2017.
40. [40]
    Mr Pain was then dealt with in the Supreme Court on 4 October 2019 for possession of dangerous drugs with a circumstance of aggravation (drug possession) which had been detected on 27 July 2017 and also for related offences detected on the same date.  The pure amount of methylamphetamine of which he was in possession was 6.126 grams.  He was sentenced on the basis it was for personal use.  As a result of committing these offences on 27 July 2017, his parole had been cancelled again.  Applegarth J who sentenced Mr Pain on 4 October 2019 took into account that he had served a period of eight months between 27 July 2017 and 29 March 2018 when he was held on remand for the offence committed on 27 July 2017 at the same time as serving the balance of the sentence imposed on 20 August 2015.  Applegarth J did not give full credit for the period of eight months.  Applegarth J also took into account 64 days in the presentence custody certificate that could not be declared (that was identified in the sentencing remarks as between 27 March and 29 May 2019).  Applegarth J would have sentenced Mr Pain to two years’ imprisonment, but instead sentenced him to 20 months’ imprisonment with a parole eligibility date as at the date of the sentence.
41. [41]
    Mr Pain was then dealt with in the District Court on 13 February 2020 for offences committed on or about 24 May 2018 (home invasion) including burglary in the night whilst armed and in company and armed robbery in company.  Mr Pain was one of four offenders and he took the handgun to the home invasion.  He pointed the handgun at the face of a female in the house and made most of the demands to those present in the house.  Mr Pain was on bail for the drug possession when he offended in May 2018.  Mr Pain was arrested for the home invasion on 7 June 2018.  It is not apparent from the appeal record for the subject offence, when Mr Pain was released on bail for the offending committed in May 2018.  He was in the community on bail when he offended on 4 February 2019.
42. [42]
    Mr Pain was arrested on 8 February 2019.  He was held on remand for the subject offence between 8 February and 3 October 2019.  He then served in full the sentence imposed by Applegarth J on 4 October 2019 and also from 13 February 2020 the custodial component of the sentence for the home invasion before it was suspended on 12 June 2021.  He was on remand again for the subject offence from 13 June 2021.
43. [43]
    The presentence custody certificate before the trial judge stated that Mr Pain was “currently serving a total period of 4 years, 8 months and 7 days imprisonment, backdated to commence on 29/3/2015” which was one way of referring to the time he had spent in actual custody since 29 March 2015.  That statement was unhelpful as it did not reflect the short periods which Mr Pain had in the community.  The analysis of the various sentences imposed on him since he was sentenced to three years’ imprisonment for the aggravated drug possession when the sentence effectively commenced on 29 March 2015 can be summarised as follows.  After serving 12 months of that sentence, he was released on parole on 29 March 2016 and had four months in the community, before returning to custody in July 2016.  He served about another 10 months of the aggravated drug possession sentence in custody before being paroled on 9 June 2017.  He then had about seven weeks in the community before being returned to custody on 27 July 2017 when he completed the balance of the eight months remaining of the aggravated drug possession sentence.  Shortly after the full time expiry of that sentence on 29 March 2018, he was released on bail for the drug possession, but returned to custody on 7 June 2018 after about two months in the community.  He was held on remand for the home invasion from 7 June 2018 until he was released on bail before he was arrested again on 8 February 2019.  It was therefore a matter of months (not exceeding eight months) that he was in the community before his arrest on 8 February 2019.  Between 29 March 2015 and 8 February 2019, Mr Pain had up to 16 months in the community, depending on when the period of bail commenced before 8 February 2019.

Sentencing remarks

44. [44]
    After summarising the events that commenced with the meeting at the coffee shop with the complainant that ended abruptly and violently, the trial judge made the following findings relevant to the sentencing:

“The jury have found that you and other members of your group have then come together and pursued [the complainant] with the purpose of inflicting serious physical harm on him. When pursued, [the complainant] did arm himself with a knife, and later a machete. Whilst some members of the group pursued [the complainant] on foot, you went to your vehicle, in which you ordinarily have a gun, and drove to where you saw [the complainant] and members of your group converging near JB HiFi on Leda Drive, just outside the shopping centre. There were other motorists and pedestrians in this area. You drove onto the incorrect side of the road to intercept [the complainant]. You then aimed the gun at and discharged a shot at [the complainant], intending at that time to disable [the complainant] and prevent him from running away so that he could be assaulted by members of the group. Notwithstanding [the complainant] was shot in the left upper leg, he was able to limp away and avoid being further assaulted. You immediately left the scene.

[The complainant] did present at a hospital two days later for treatment for his wound, but he has otherwise refused to cooperate with police in relation to other matters. The bullet went through his thigh with no nerve damage, but there was some bone injury. The bone fragments were not removed, and he was treated conservatively with pain relief, a leg splint and antibiotics. I infer that [the complainant] has suffered some harm as a result of your offending.

The shooting of a man with intent to disable him so he can be assaulted, in the circumstances where injury is actually suffered during a violent incident between rival outlaw motorcycle gang members in a public place such as the footpath outside a major shopping centre during business hours, where a number of innocent members of the community, including children, were going about their lawful business, is a quintessential serious violent offence, and warrants such a declaration.”

45. [45]
    After summarising Mr Pain’s antecedents, the sentencing judge noted that Mr Pain had been held on remand for the subject offence between 8 February 2019 and 26 July 2021 which was a total of 900 days, but Mr Pain at times had been serving a sentence for other offending.  The trial judge observed that “it was taken into account in fashioning the appropriate sentence” which appeared to refer to the time served on remand during that period for the subject offence that had been otherwise taken into account in determining the respective sentences imposed during that same period for the drug possession and the home invasion.
46. [46]
    The trial judge also observed that Mr Pain had spent a significant amount of time since 29 March 2015 in custody.  He noted that, of the 900 days, a total of 282 days was for presentence custody solely related to the subject offence and that was between 8 February and 3 October 2019 (238 days) and between 13 June and 26 July 2021 (44 days).  It is implicit in the trial judge’s confining the presentence custody declaration to the 282 days that related solely to the subject offence that the trial judge had decided not to give any credit for the balance of the 900 days as time served as imprisonment under the sentence for the subject offence.  The trial judge noted the comparable authorities to which reference had been made by both the prosecutor and Mr Kimmins.  In imposing the sentence, the trial judge expressly noted that his Honour had balanced “the relevant considerations” and took into account the sentences that Mr Pain had already served or was liable to serve.
47. [47]
    Even though it was not formulated as a separate ground for the application, Mr Pain relies on the trial judge’s failure to make a declaration pursuant to s 159A of the Act of the total period from 8 February 2019 for which Mr Pain was held in custody in relation to proceedings for the subject offence.  That total period was 900 days as at the date of sentence and the primary judge was satisfied that only that part of the period of 282 days for which he was held on remand for the subject offence and not serving another sentence should be declared to be imprisonment already served under the sentence.  Even though the trial judge expressly referred to the period of 900 days in the sentencing remarks and declined implicitly to make a greater period than 282 days as imprisonment served in the respect of the subject sentence, the failure to make the declaration pursuant to s 159A(3B) in respect of the total period was an error of law.  Unless the Court concludes in the independent exercise of its discretion that the same or a more severe sentence as the base sentence is the appropriate sentence, the Court must resentence on account of the error of law: R v Wilson [2022] QCA 18 at [21].
48. [48]
    It will assist in undertaking the task of considering whether the Court should resentence due to the error of law in respect of the declaration required under s 159A(3B) of the Act to consider the submissions made in respect of the grounds of the application.

Ground 1 – did the trial judge fail to resolve factual disputes?

49. [49]
    One of the factual disputes that emerged in the submissions made to the trial judge for the purpose of the sentencing was whether the intent to disable was a momentary intention formed immediately prior to the shooting or whether it was an intention formed earlier consistent with the prosecution case that the Rebels intended to inflict serious physical violence on the complainant.  As set out in the passage extracted above from the trial judge’s findings on the sentencing, the trial judge accepted that the guilty verdict was consistent with the prosecution case that Mr Pain and other members of the Rebels had come together and pursued the complainant with the purpose of inflicting serious physical harm on him, but that, as shown by the words in bold in that extract, the intent of Mr Pain, when he discharged the shot from his gun, was formed at that time.  The trial judge therefore did resolve that factual dispute in favour of Mr Pain by finding, in effect, that the intent to disable was formed momentarily before the shooting in the context of the wider purpose that Mr Pain and the other Rebels’ members had of pursuing the complainant to assault him.
50. [50]
    The other factual matters raised on Mr Pain’s behalf during the sentencing submissions that were said not to be resolved by the trial judge were that the complainant had armed himself prior to being shot and was brandishing a machete and the complainant was acting aggressively.  Those matters were acknowledged in the sentencing judge’s findings that the complainant “did arm himself with a knife, and later a machete” and that the injury was “actually suffered during a violent incident between rival outlaw motorcycle gang members in a public place”.  The fact that the latter comment was referred to in the context of the exercise of the discretion by the trial judge to declare that Mr Pain was convicted of a serious violent offence does not mean that finding was not relevant for the purpose of the sentencing.  Both on the hearing of this application and before the trial judge, Mr Kimmins of counsel attempted to rely on the fact that the complainant was armed and behaving menacingly as a mitigating factor in assessing Mr Pain’s response to shooting him.  As the trial judge made clear, when the shooting occurred in the context of a violent confrontation between Mr Pain (and the members of his group) and the complainant where Mr Pain and his group pursued the complainant with the purpose of inflicting serious physical harm on him, that could not be a mitigating factor.

Ground 2 – was the base sentence manifestly excessive?

51. [51]
    As the trial judge acknowledged in the sentencing remarks, the effect of the serious organised crime circumstance of aggravation engaged s 161R(2) of the Act which requires the Court to impose on the offender a sentence of imprisonment for the prescribed offence (referred to as the base component) without regard to the mandatory sentence that must be imposed on the offender under s 161R(2)(b) of the Act and the control order made under s 161V of the Act.  That proscription applies to this Court in determining whether the base sentence was manifestly excessive.  It means that the Court must ignore the additional mandatory cumulative term of imprisonment for seven years (and the control order) when determining whether the base component is manifestly excessive.
52. [52]
    The serious organised crime circumstance of aggravation results in a specific separate mandatory sentence as the matters in s 161Q(1)(a) and (b)(ii) of the Act were, by the jury’s verdict, proved beyond reasonable doubt.  Malicious act with intent is a prescribed offence for the purpose of part 9D of the Act.  The serious organised crime circumstance of aggravation for a prescribed offence applies where, at the time the offence was committed, the offender was a participant in a criminal organisation (paragraph (a)) and knew or ought reasonably to have known the offence was being committed in association with one or more persons who were, at the time the offence was committed participants in a criminal organisation (paragraph (b)(ii)).
53. [53]
    Mr Pain submits that s 161R of Act has the effect that the Court should ignore his membership of the Rebels and how that involvement contributed to the circumstances in which he offended in considering the base component of the sentence.  That submission must be rejected.  If that were the case, it would result in sentencing for the offence of malicious act with intent without regard to the true circumstances in which the offence was committed that affected the seriousness of the offending.  As the trial judge observed, the shooting of the complainant with intent to disable him was for the purpose of facilitating the assault of the complainant by other members of the Rebels, and it occurred outside a shopping centre where there were other motorists and pedestrians present.  It is not a case of Mr Pain’s being doubly punished for being a member of the Rebels.  The aspects of his membership that proved the serious organised crime circumstance of aggravation are punished by the mandatory sentence.  That membership contributed to the circumstances of the offending which were reflected in the facts relevant to the prescribed offence.  It was proper for the base sentence to be imposed on Mr Pain for the offence of malicious act with intent by reference to its seriousness in the circumstances in which it was committed.
54. [54]
    Apart from the issue of totality, the comparable sentences that were relied on before the trial judge support a sentence of at least six years’ imprisonment for Mr Pain’s commission of the offence of malicious act with intent.
55. [55]
    A sentence for comparable offending to that committed by Mr Pain was that imposed on Mr Jade Lacey that was upheld in R v Lacey [2009] QCA 275 for unlawful wounding with intent to maim.  A sentence of five years’ imprisonment was imposed after trial.  It was notionally a sentence of seven years’ imprisonment as there were 734 days spent in custody on remand for that and other offences which could not be declared.  He had taken a loaded handgun with him when he and his brother went to a townhouse.  He brandished and then used the handgun inside the crowded townhouse and shot the victim with intent to maim him.  The victim was unarmed when he was shot and had stopped moving forward towards the offender.  The bullet went through both thighs missing the thigh bone in each leg.  The injury was described as “not as severe as it might have been”.  The offender was 24 years old at the date of the offence and had a minor criminal history.  The sentencing judge had declined to declare the offender to be convicted of a serious violent offence.  The offender’s sentence leave application did not succeed.  The majority (de Jersey CJ and Keane, Muir and Chesterman JJA) noted at [47] that the discretion to declare the offender convicted of a serious violent offence would not have miscarried had the sentencing judge made the declaration.
56. [56]
    The offender in R v Gadd [2013] QCA 242 pleaded guilty to offences arising out of a home invasion including unlawful wounding with intent to maim.  For that offence and each of burglary with violence, while armed, in company and armed robbery in company with wounding, he was sentenced to eight years’ imprisonment and declared to be convicted of a serious violent offence.  The victim and his partner returned to their residence when the robbery was in progress and the offender pointed the firearm in his hand at the victim, pulled the trigger and shot him in the leg.  The offender was 43 years old when sentenced and a serious criminal history including a conviction in 2005 of grievous bodily harm.  The application for leave to appeal against sentence which was directed at the serious violent offence declaration was unsuccessful.
57. [57]
    There was a plea of guilty to burglary and malicious act with intent in R v Granato [2006] QCA 25.  The offender was accompanied by two other men and wielded a baton.  The others had a baseball bat and a Club Lock.  The victim was asleep in his bed when he was woken by a blow to his jaw and saw the offender standing over him with the baton.  The offender struck the complainant all over his body with the baton.  The other men used their weapons in similar fashion.  The victim suffered substantial injuries that ended his amateur boxing career.  The offender and the victim had fallen out previously and the offending was described as a “violent revenge-motivated home invasion”.  The offender was 33 years old at the date of the offending and had no relevant prior criminal history.  He was sentenced to five years’ imprisonment with a recommendation for post-prison community-based release after serving 21 months.  The application for leave to appeal against the sentence was unsuccessful.
58. [58]
    The offender in R v Holland [2008] QCA 200 was convicted after trial of doing grievous bodily harm with intent.  The victim’s jaw was broken in multiple places and required two rounds of surgery.  The assault was provoked by the complainant, but the offender’s response was “grossly excessive”.  The offender had kicked the victim whilst wearing boots.  The offender was 43 years old at the date of the offence and committed the offence during the operational period of a suspended sentence that had been imposed on the offender for assault occasioning bodily harm.  He was sentenced to five years’ imprisonment cumulative upon the suspended sentence for 12 months that was activated.  The sentence was described as at the lower end of the range where grievous bodily harm had been deliberately inflected by the use of a weapon (the boots) by a mature offender with a record of personal violence on the basis the sentence would be cumulative upon the sentence for the earlier offence.
59. [59]
    These comparable authorities show that the injury suffered by the victim is a relevant factor in sentencing for malicious act with intent.  The subject offence did not result in the complainant’s suffering injuries at the serious end of the scale of potential injuries from being shot.  The subject offence, however, represented an escalation in the use of a handgun by Mr Pain.  Whereas he used it in the home invasion to threaten the residents in the house, he fired the handgun at the complainant with the intent to disable him and hit him in the leg.
60. [60]
    As the sentence for the subject offence overlapped with the sentences served by Mr Pain for the drug possession and the home invasion, the totality principle was relevant to the sentencing of Mr Pain: R v Beattie; Ex parte Attorney-General (Qld) (2014) 244 A Crim R 177 at [19].  As the sentencing remarks revealed, it was apparent to the trial judge that the respective sentences imposed for the drug possession and home invasion had taken totality issues into account.  The sentence for the drug possession was reduced from the sentence that would otherwise have been imposed, the sentence for the home invasion was concurrent from 13 February 2020 with the sentence for the drug possession, and the structure of the sentence for the home invasion resulting in suspension of the sentence after 16 months was beneficial to Mr Pain.  He effectively served only 16 months of that sentence of imprisonment for five years and was given full benefit as imprisonment served under the subject sentence for the period that commenced from the date the home invasion sentence was suspended on 12 June 2021.
61. [61]
    The comparable authorities supported a sentence of six years’ imprisonment for the subject offence.  Mr Pain’s offence was at least as serious as that committed by the offender in Lacey and Mr Pain’s prior criminal history was much worse than Mr Lacey’s criminal history.  The overall offending in Gadd may have been more serious than the subject offence, but the sentence of eight years’ imprisonment was imposed after a guilty plea.  Mr Pain’s more serious criminal history distinguishes his position from that of the offenders in Granato and Holland.  In addition, the sentence in Granato was imposed after guilty pleas.
62. [62]
    The base sentence of six years’ imprisonment for the subject offence even with a declaration that Mr Pain was convicted of a serious violent offence that followed immediately the period of 16 months’ imprisonment served as the custodial component of the partly suspended sentence for the home invasion did not result in an aggregate sentence for the home invasion and the subject offence that was not just and appropriate for that consecutive offending.

Ground 3 – did the trial judge err in making the serious violent offence declaration?

63. [63]
    As indicated above, the trial judge was entitled to have regard to the circumstances in which Mr Pain discharged the gun and shot the complainant in his leg, even though those circumstances arose from Mr Pain’s membership of the Rebels and his association with other members of the Rebels when the offence was committed (which were the elements of the serious organised crime circumstance of aggravation).  There was no error in the circumstances in which the offence was committed which involved firing the handgun in a public place where other people were present, as found by the trial judge consistent with the jury’s verdict and described accurately as “a quintessential serious violent offence”, in declaring that Mr Pain was convicted of a serious violent offence.

Was the base sentence the appropriate sentence for Mr Pain’s offending?

64. [64]
    The base sentence of six years’ imprisonment with the declaration that Mr Pain was convicted of a serious violent offence was the appropriate sentence for Mr Pain’s offending, having regard to his prior criminal history and the circumstances of the offending and having considered totality issues.  Apart from correcting the error in the declaration made under s 159A of the Act, it is therefore not necessary to resentence Mr Pain.

Orders

65. [65]
    It follows that the orders which should be made are:

1. Appeal against conviction dismissed.
2. Application for leave to appeal against sentence granted.
3. Appeal against sentence allowed to the extent of setting aside the presentence custody declaration made by the trial judge on 27 July 2021 and, in lieu, declaring that the offender was held in presentence custody for 1,386 days between 8 February 2019 and 24 November 2022 and that 768 days of that time is taken to be imprisonment already served under the sentence, namely 238 days between 8 February 2019 and 3 October 2019 and 530 days between 13 June 2021 and 24 November 2022.
4. Otherwise confirm that sentences and orders made by the trial judge on 27 July 2021.

66. [66]
    MORRISON JA: I agree with her Honour Mullins P.
67. [67]
    FLANAGAN J: I agree with Mullins P.