R v Kuhn[2022] QCA 247

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with Applegarth J.
2. [2]
   FLANAGAN JA:  I agree with Applegarth J.
3. [3]
   APPLEGARTH J:  The appellant was convicted after a jury trial for the offence of malicious act with intent.  He used a baseball bat and his fists to beat the complainant.  The complainant sustained a fractured skull, a traumatic brain injury and lacerations from the skull fracture that, if left untreated, would have caused his death.
4. [4]
   The jury was directed that to find the appellant guilty of the offence with which he was convicted, which required an intention to cause grievous bodily harm, the prosecution had to prove beyond reasonable doubt that the appellant meant to produce that result.  They were also directed that guilt should not only be a rational inference but also it should be the only rational inference that can be drawn from the circumstances.  They were further directed that any reasonable possibility consistent with innocence required them to find the appellant not guilty.
5. [5]
   No criticism is made of these directions.  Instead, the appellant contends that the judge should have added in his direction that before the appellant could be convicted of malicious act with intent, the jury had to exclude “lesser alternative intents” beyond reasonable doubt.
6. [6]
   This argument is unpersuasive.  The directions on intent were adequate in the circumstances of the case.  Intent was not a significant issue.  The evidence and the argument before the jury (including the appellant’s statements to police) did not suggest the possibility that he only intended to inflict some lesser harm or had no intent at all.
7. [7]
   The summing-up was adequate to direct the jury that any reasonable inference that the appellant did not have the requisite intent had to be excluded by the prosecution beyond reasonable doubt.
8. [8]
   There was a factual issue about whether the appellant hit the complainant in the head with the baseball bat, something the appellant denied in his interview with police.  But even in the unlikely event that the fractured skull was caused by the appellant’s fist, rather than the baseball bat, significant force would have been required to cause the injuries.  The evidence of the sustained attack by the appellant while the complainant was on the ground, including the appellant’s use of the baseball bat, the number and nature of injuries that the complainant sustained, and the circumstances in general indicated that the appellant intended to cause very serious injuries.
9. [9]
   The appellant’s trial counsel did not suggest, in the course of his lengthy address, that the evidence left open a less serious intent.  He did not ask the judge to give additional directions about any “lesser alternative intents”.
10. [10]
    The forensic choice of defence counsel to concentrate on self-defence rather than intent is understandable.  His client’s use of a baseball bat in a prolonged bashing in which the complainant sustained a fractured skull made it hard for defence counsel to nominate some lesser intent.  If the additional suggested direction had been given by the trial judge, the jury would have struggled to identify a “lesser alternative intent” in circumstances in which none had been suggested.  None had been suggested because, in the circumstances of the case, little, if anything, could be said by defence counsel on that point.

Facts

11. [11]
    Given that the single ground of appeal against conviction relates to an alleged failure to give an additional direction, a detailed account of the evidence of each witness is not required.
12. [12]
    The complainant and his partner, Laine Kennedy, lived in a small town in Central Queensland, as did the appellant and his son.  On 5 May 2020, the complainant and Ms Kennedy went to a location at the Styx River.  While they were talking, the appellant and his son drove past.  They then turned around and returned to where the appellant was.  There was a verbal exchange about whether the complainant “had a problem” to which he replied “no”.  The appellant got out of his vehicle, punched the complainant in the head and threatened to kill him.  Ms Kennedy separated the two.
13. [13]
    The complainant and Ms Kennedy returned to their home in the town.  She went inside their house.  The complainant collected a baseball bat and drove on his motorbike to a nearby house where the appellant, his son and a woman were present.  He probably said some threatening things and then returned to his home.  He and Ms Kennedy were planning to walk to her father’s nearby house.  The appellant and his son drove down their street in a different vehicle to the one they had been in at the river.  It left the road and caused the complainant to jump out of its way as it swerved in his direction.  The vehicle came to a stop.
14. [14]
    The appellant was driving and his son was in the passenger seat.  The complainant ran to the driver’s door with the metal baseball bat in his hand.  He said he intended to stop the appellant getting out of his car.  He swung the bat and struck the car.
15. [15]
    The appellant’s son, who was charged with aiding the offence committed by his father, got out of the vehicle, grabbed a chain and struck the complainant to the legs or back.  After the complainant was hit by the chain, he dropped the bat.  He tried to get away and fell over.  He then was (in his words) “beat down”.  He recalled being hit “everywhere” with the bat and the chain.  Because he was face down on the ground he could not see the people who were beating him.  After the two men left, he noticed that his head was “smashed in” and he had injuries to his ribs and legs.
16. [16]
    Ms Kennedy saw most of the incident.  She was at the top of the stairs and saw “the younger man” from down at the creek get out of the passenger side with a chain and hit the complainant across the back several times.  She came down the stairs and saw everything that happened on the driver’s side.  She saw “the older man” hitting the complainant with the baseball bat and “the younger man” hitting him with the chain.  She said she saw the older man hitting the complainant in the head with the bat.  The younger man was using the chain on the complainant’s back and body.  The complainant broke free and she told him to run.  He did so but lost his footing and the men ran after him.  They got the complainant “back down on the ground”.  The younger one continued to hit the complainant’s legs with the chain and “the other guy” was “just bashing” the complainant’s head and body.
17. [17]
    At some stage, the bat fell free and the appellant began using his fists.
18. [18]
    Ms Kennedy heard one of them yelling out “take his legs”.  The complainant’s recollection is that when he was on the ground the older man was saying, “Break his legs.  Break his legs”.
19. [19]
    Partway through the incident, Ms Kennedy’s father, who lived a few doors away, arrived at the scene and saw the complainant lying face down on the ground with the appellant leaning on his back, holding the bat, and punching the complainant to the head.  The punches were to the side of the complainant’s face.  Mr Kennedy intervened.  There was a brief pause in the action as the appellant saw Mr Kennedy.  The appellant then went back to punching the complainant.  Mr Kennedy placed his hand on the appellant’s shoulder and he stood up.
20. [20]
    The appellant then regained the bat and started hitting the complainant on the hips, thighs and legs.  Ms Kennedy’s recollection was that her father’s attempt to stop the fight did not work.  The complainant was down on the ground.  Ms Kennedy grabbed the bat at one stage and told the appellant’s son to stop, which he did.  The appellant still had the complainant down on the ground and, in the end, hit the complainant “really hard to the ground” and then walked off.
21. [21]
    Another neighbour saw the final part of the incident, by which time Ms Kennedy’s father was at the scene.
22. [22]
    After the incident, the appellant told a Mr Thompson that the complainant had raced out and attacked him with a bat.  He showed him the window frame on the driver’s side of his car which looked like it had been struck with something.  He did not notice any injuries to the appellant.
23. [23]
    The complainant did not seek immediate treatment for his injuries.  However, he began to experience seizures, was hospitalised in Rockhampton, intubated and transferred to the Intensive Care Unit of a hospital in Brisbane.  The complainant had a comminuted fracture on the top left side of his skull.  There were punctate lacerations on the left side of his skull.  The surface of the brain had been lacerated by the bone fragment.  There was a haematoma under the fracture.  The complainant required an emergency operation to elevate and debride the depressed fracture.  During the procedure, he was found to have a dural laceration and haematoma.  Dead brain tissue had to be removed.  Because there was a direct breach of the overlying skin and a direct pathway down from it, this was a “high-risk fracture for developing infections”.  If left untreated the complainant would have developed an infection, continued to have seizures and ultimately died.
24. [24]
    Neither the appellant nor his son gave evidence.  A field recording with police on the evening of 6 May 2020 was part of the evidence.  In essence, the appellant stated that the complainant was the aggressor and that his son got out of the car with the chain because the complainant was hitting the frame of the driver’s door with the bat.  The appellant said that he got out of the car and disarmed the complainant.  He said that he only hit the complainant in the legs with the bat.  He accepted that he punched the complainant to the head.

The issues at trial

25. [25]
    The main issue at the appellant’s trial was self-defence.  The recollections of certain prosecution witnesses, particularly the complainant and Ms Kennedy, were tested.
26. [26]
    The defence position was that the complainant assaulted the appellant by using the baseball bat on the door of his vehicle and did so with such force as to cause reasonable apprehension of death or grievous bodily harm to the appellant.  The assault by the complainant was said to be unprovoked and unlawful.  Next, the appellant’s case was that after the assault on him, he witnessed the complainant assault his son with a baseball bat.  The appellant was then said to have attacked in defence of himself and in defence of his son, “using such force as was reasonably necessary to make effectual defence against the complainant”.  The force used by the appellant was said to be both reasonable and necessary in the circumstances.
27. [27]
    These contentions were developed at considerable length in defence counsel’s address to the jury.
28. [28]
    The prosecutor’s address to the jury developed reasons why any defence of self-defence or defence of another was not open.  She made the point that if the complainant was the aggressor it made no sense for the appellant to get out of the car.  A key point was that the complainant was being chased and “chasing a man who is fleeing is not the hallmark of two men defending themselves”.  She relied upon the fact that after the complainant tripped, the brutal assault continued with the appellant using both the baseball bat and later his fists.  The level of force needed to cause the fracture was said to be consistent with a “weaponised assault with a baseball bat”.  The appellant’s hands could not have caused a fracture on their own and, if the appellant had used the significant amount of force needed to fracture the skull with his bare hands, then one would expect his knuckles to be injured.  The appellant and his son came looking for the appellant and their chase of the complainant was not consistent with them acting defensively.  For various reasons, the elements of each self-defence provision were excluded.
29. [29]
    On the issue of intent, the prosecutor noted that whilst the appellant’s son might have stopped his violence at some point, the appellant continued the brutal beat down.  The circumstances that supported the element of intent included that brutality of the assault, the evidence of repeated blows to the head with a baseball bat and then repeated punches to the head.  These included blows rendered after the complainant had fled and fallen down.  There was no evidence of the complainant fighting back.  The evidence was that the appellant was targeting the complainant’s head and his son was targeting the legs with the appellant calling out “break his legs”.
30. [30]
    Another piece of circumstantial evidence was that when the appellant and his son arrived in a different car, the car swerved towards the complainant.
31. [31]
    All the circumstances were submitted to point to an “incontrovertible conclusion” that the appellant intended to do the complainant some grievous bodily harm.
32. [32]
    Defence counsel alleged inconsistencies and deficiencies in certain evidence and emphasised issues of self-defence based on the proposition that it was the complainant who attacked with the baseball bat in the first place.
33. [33]
    Defence counsel accepted that the medical evidence was that significant force was required to cause the fracture, and argued that this did not necessarily mean that the fracture was caused by a weapon.  He relied upon the appellant’s recorded conversation with police in which the appellant said, “I’ve hit old mate a couple of times in the legs with it; three or four times”.  This was said to be consistent with the observations of Ms Kennedy’s father.
34. [34]
    The address by trial counsel ended with a focus upon the elements of self-defence.  In essence, he said that there was an unprovoked assault upon the appellant by the complainant when the appellant was in the car, that the appellant was acting in self-defence and defence of his son and that the amount of force used was both reasonable and necessary.  The argument was that the appellant used the baseball bat at a certain point, but only used it to strike the complainant to the lower part of his body, and not on the head.  The appellant accepted that he had punched him and made connection with the head.
35. [35]
    Defence counsel said that it was a matter for the jury to determine whether the appellant caused the wound that amounted to grievous bodily harm.  He raised the fact that there was a gap between the fight and when an ambulance was called the next day.  Defence counsel noted the possibility that the jury might think that a punch had caused the complainant’s head fracture when his head was on the ground.  He then pointed out that, despite the complainant’s denials of having been on his bike and having had an accident the next day, and Ms Kennedy’s evidence that the complainant was in bed all day, whether or not the appellant caused the skull fracture was still “a live issue”.  There was no doubt that the injury amounted to grievous bodily harm, but defence counsel argued that there remained an issue of whether the appellant caused that injury.
36. [36]
    Defence counsel did not engage in his address with the issue of intent or respond to the prosecutor’s arguments about intent.  The only reference in his address to intent was a passing reference to it in the final few sentences of his address.  This was part of a broad-brush submission that if the jury was left in doubt as to whether the appellant “caused all of this” or did not really know if he intended it, and really did not know that it “wasn’t justified self-defence” then they would be required to return a verdict of not guilty to both malicious attack with intent and the alternative charge of doing grievous bodily harm.

The summing-up

37. [37]
    The trial judge gave directions on the elements of the offence, including intent.  There was no criticism of what the trial judge said about the issue of intent, including the fact that the finding of guilt on malicious act with intent required the elements to be proven beyond reasonable doubt.  The trial judge gave a direction that intention was something that may be inferred from all the circumstances.  He directed that to bring in a verdict based entirely or substantially on circumstantial evidence, “it is necessary that guilt should not only be a rational inference but also it should be the only rational inference that can be drawn from the circumstances”.  The judge continued that if there was a reasonable possibility consistent with innocence, it was the jury’s duty to find the appellant not guilty.
38. [38]
    The sole ground of appeal does not relate to the correctness of what was said by the trial judge to the jury on the issue of intent.  He complains about a failure to say more.  To address this ground it is necessary to say something about a trial judge’s duty to instruct the jury as to the law applicable to the case and “the difficult task trial judges have in giving juries proper instructions”.^[1]

Relevant principles on giving instructions

39. [39]
    The starting point is s 620(1) of the Criminal Code (Qld).  It provides that it is “the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make”.  The duty to “instruct” has been said to require the judge to identify the real issues in the case and the facts that are relevant to those issues, and to explain how the law applies to those facts.^[2]  In RPS v The Queen, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said:^[3]

“The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused.  That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case.  No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury.  Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues.  It will require the judge to put fairly before the jury the case which the accused makes.  In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.”

40. [40]
    Much has been written on different aspects of the task of giving juries proper instructions.  Many relevant authorities were discussed in R v DBV^[4] in which the complaint related to an alleged failure by a trial judge to put the case for the accused accurately and fairly to the jury.  No such complaint is made in this matter.
41. [41]
    In Castle v The Queen,^[5] Kiefel, Bell, Keane and Nettle JJ confirmed the essential requirements of a summing-up, as stated in RPS, and that the requirements “include that the judge must fairly put the accused’s case, an obligation which extends to explaining any basis upon which the jury might properly return a verdict in the accused’s favour”.
42. [42]
    Irrespective of the way in which the case is conducted by the parties, if a defence is fairly raised on the evidence, it becomes one of the real issues to be determined by the jury.^[6]  The judge is required to direct in relation to any matter upon which the jury could, upon the material before them, find or base a verdict in whole or in part in favour of the accused.^[7]
43. [43]
    A summing-up should be clear and concise.  The law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applies to the facts of the particular case.^[8]  The only law that it is necessary for the jury to know is so much as must guide them to a decision “on the real issue or issues in the case”.^[9]  A summing-up is not meant to take the form of an essay on the law, with points given for comprehensiveness.^[10]  A summing-up must be tailored to the circumstances of the particular case being tried.^[11]

Application of these general principles to the issue of intent

44. [44]
    The trial judge’s directions on intent applied these principles.  Directions were given about the elements of the offence, the burden and standard of proof, and other matters of law.  Specific instructions were given about the element of intent and the requisite intent to do some grievous bodily harm.  The jury was instructed about drawing inferences.  They were told how intention may be inferred or deduced from the circumstances in which the grievous bodily harm occurred and from the conduct of the appellant before, or at the time of, or after he did the specific act which caused grievous bodily harm.
45. [45]
    As noted, the jury was told that to bring in a verdict of guilt based substantially upon circumstantial evidence “it is necessary that guilt should not only be a rational inference but also it should be the only rational inference that can be drawn from the circumstances”.  In addition, the jury was instructed:

“If there is any reasonable possibility consistent with innocence it is your duty to find the defendant not guilty.  This follows from the requirement that guilt must be established beyond reasonable doubt.”

46. [46]
    In giving those instructions, the trial judge gave what Dawson J in Shepherd v The Queen^[12] described as “a helpful direction” in many, if not most, cases involving substantial circumstantial evidence.  Dawson J went on to say there is no invariable rule of practice, let alone rule of law, that these directions should be given in every case involving circumstantial evidence.  That said, in many cases it will be necessary.  R v Lewis,^[13] a decision upon which the appellant relies, was such a case.
47. [47]
    Relevantly, the trial judge in Lewis did not give the two helpful directions that the trial judge gave in this case.  This immediately distinguishes this matter from it.  In Lewis, the judge did not tell the jurors that before they could convict, they must exclude beyond a reasonable doubt that the appellant acted only to frighten the complainant into leaving him alone.^[14]  The available evidence, when taken as a whole, supported at least one reasonable hypothesis consistent with innocence: that the relevant act (the production of a flame through use of a lighter) was intended only to frighten the complainant into leaving him alone.^[15]  As Burns J (with whom Gotterson and Philippides JJA agreed) said, the “whole case was about intent”.^[16]
48. [48]
    In R v Newlove,^[17] Morrison JA (with whom Fraser JA and Davis J agreed) stated that in Lewis there was a distinct alternative raised on the complainant’s own evidence and supported by past conduct, namely an intention to achieve a different result.  Davis J (with whom Fraser JA and Morrison JA agreed) stated that Lewis did not establish any matter of general principle.^[18]  In Newlove, the summing-up was adequate and included similar directions to the directions given by the trial judge in this matter about reasonable inferences and that guilt should not only be a rational inference, but should be the only rational inference that can be drawn from the circumstances.^[19]

Was the summing-up inadequate because it did not go on to refer to “lesser alternative intents”?

49. [49]
    The summing-up had to be tailored to the circumstances of the case.  The fact that defence counsel said practically nothing about the issue of intent, and nothing at all about an alternative lesser intent, did not relieve the trial judge of the duty to give instructions about intent, including its proof beyond reasonable doubt in a case that was based entirely or substantially upon circumstantial evidence to prove intent.  It did, however, mean that no occasion arose (as in Lewis) to instruct the jury on a reasonable hypothesis consistent with innocence that was based on the evidence, including what the appellant said immediately after the act.  That the appellant may have intended only to frighten the complainant was the real issue at trial in Lewis.  The trial judge in that case should have gone further and given the kind of directions about inferences that the trial judge did in this case.
50. [50]
    In this case, the trial judge’s instructions to the jury on the issue of intent were adequate in the circumstances.  I am not persuaded that the trial judge was required to go further and instruct the jury about the need to exclude “lesser alternative intents”.
51. [51]
    If the trial judge had instructed the jury that it might want to consider a hypothesis that the appellant intended some lesser harm than grievous bodily harm, then he would have been required to formulate a direction that they would need to be satisfied that the hypothesis was a reasonable one: that it “must rest upon something more than mere conjecture”.^[20]  In a case in which no hypothesis was articulated by defence counsel and nothing was said by the appellant to police about having a different and lesser intent, the trial judge may have struggled to say what that lesser alternative intent may have been.
52. [52]
    This was not a case where intoxication or the circumstances in which the grievous bodily harm was inflicted gave rise to a reasonable hypothesis that the appellant was incapable of forming or did not form any particular intent.  There will be cases in which intoxication or instantaneous reaction by someone already in possession of a weapon raises a doubt about whether the accused was able to form a particular intent.  This is not such a case and the trial judge did not err in failing to direct the jury about a hypothesis that the appellant did not form any particular intent.  The amended ground of appeal refers to a failure to direct about “lesser alternative intents” rather than the absence of any intent.  The appellant’s attack upon the complainant was protracted and included multiple blows with a baseball bat.  It was not reasonable to hypothesise that the appellant did not intend to harm the complainant at all.
53. [53]
    This is not a case in which a hypothesis was raised that the appellant, intending to hit the complainant with a baseball bat to his body, by mistake hit him in the head, and the evidence did not make such a hypothesis a reasonable one.
54. [54]
    No “lesser alternative intents” were raised by the counsel who appeared at the trial.  Mr Hoare of counsel, who appeared on the appeal but not at the trial, submitted that a lesser intent, open on the evidence, included that the appellant “was acting excessively in self-defence or in response to provocation”.  To suggest that the appellant was acting in response to the complainant’s hitting the window frame of his car door with a baseball bat and in fear for his (or his son’s) safety, would be to say little, if anything, about the intent with which he responded or the intent he had when he inflicted the skull fracture that constituted grievous bodily harm.
55. [55]
    The trial judge’s duty did not require him, in giving instructions to the jury on intent, to complicate the summing-up and potentially confuse the jury by referring to an intent to defend.  A person may engage in conduct having more than one object or purpose.^[21]  This does not mean that a jury, in a case like this, should be asked to consider whether the appellant lacked the requisite intent at the relevant time because he was acting in self-defence.  To do so risked confusing the appellant’s possible reason for getting out of the car with his intent in striking the complainant in the head and thereby inflicting grievous bodily harm.  It risked confusing motivation with an intent to cause a specific result at the time of the act that caused grievous bodily harm.

Conclusion

56. [56]
    The duty to instruct the jury on the issue of intent in the circumstances of this case did not require the trial judge to direct the jury about “lesser alternative intents”.  The circumstances of the case include the fact that such a lesser alternative intent was not raised as a reasonable hypothesis by the appellant’s counsel, was not raised by the appellant when he spoke to police and was not a hypothesis that derived any real support from the evidence as a whole.  The trial judge’s directions on intent were adequate in the circumstances to instruct the jury that if there were any reasonable hypothesis consistent with innocence, including the presence of a lesser intent than the specific intent that the prosecution had to prove beyond a reasonable doubt, then it was the jury’s duty to find the appellant not guilty.
57. [57]
    The directions on intent were adequate and, in the circumstances of this case, the trial judge was not required to specifically direct the jury that before the appellant could be convicted of malicious act with intent, they must exclude “lesser alternative intents” beyond reasonable doubt.  Any reference to “lesser alternative intents” would have begged the question of what they were in the absence of any such intent being suggested by the appellant or his trial counsel.  Any suggestion that the appellant did not have the requisite intent because he intended to act in self-defence would have been confusing to the jury.  A motivation to act in self-defence in response to an alleged unprovoked assault was consistent with the appellant having the intent that the jury found him to have.  Reference to an alternative intent to act in self-defence would have confused, not clarified, the issue of intent for the jury.
58. [58]
    I would dismiss the appeal.

Application for leave to appeal against sentence

59. [59]
    The appellant seeks leave to appeal against the sentence of imprisonment for a period of seven and a half years with a serious violent offence (“SVO”) declaration, on the ground that the trial judge erred in making the SVO declaration.  Alternatively, he contends that the declaration rendered the sentence manifestly excessive.

Facts

60. [60]
    There was a contested sentence hearing at which the appellant’s son gave evidence.  In deciding those issues of contested fact and in giving his sentencing remarks, the judge made a number of findings which are not disputed in this Court.  The earlier incident at the bridge was precipitated by the appellant’s conduct at that place.  The appellant assaulted the complainant and threatened to kill him.  After this, the parties went back to their houses.  The complainant went to the street outside a residence that the appellant and his son were visiting.  The complainant was on his motorbike, had a baseball bat and yelled out threats.
61. [61]
    The appellant and his son then decided to go the complainant’s house and confront him about his conduct because they were angry at him.  The complainant was scared of them, and of the appellant in particular, and had armed himself with his baseball bat.  The appellant swerved towards him as he was on the footpath.  After that incident, and by way of defence, the complainant swung the bat with some force towards the pillar of the car.  Ms Kennedy’s evidence was reliable as to what she saw, including the appellant getting the bat and hitting the complainant in the head with it.  It was a joint attack with the appellant’s son hitting the complainant with a chain.  The complainant was able to break free at one stage and the appellant and his son ran after him.  After the complainant was on the ground, the appellant continued to use the bat on him.  The appellant then started using his fists and it was at this point that Mr Kennedy and his daughter intervened.
62. [62]
    The judge found there was “clearly no self-defence here at all”.  It was a “deliberate attack”, but if there was any element of self-defence because of what the complainant did at the start, the force used was well and truly unreasonable and the appellant intended to do serious harm to the complainant.
63. [63]
    The injuries sustained by the complainant were serious.  They included a left skull fracture with underlying brain laceration, a neck fracture, two rib fractures and significant bruising.  If left untreated, he would have died.
64. [64]
    The complainant was in a coma for nine days and had a lengthy period in the brain injury rehabilitation unit.  He was in a therapy house in Brisbane for 10 weeks and still required weekly therapy.  He suffered depression, was unable to drive or work or to do many of the things that he was able to do before the attack.  He was on a high dose of daily seizure medications and will be for the rest of his life.  After a lengthy period of hospitalisation, he had no home to go to and his family were homeless for several months.  His partner became his full-time carer.  She suffered from severe acute depression.  On police advice, she and her family did not return to the town.  Her father also sold the house in which he lived for almost 20 years.  These aspects justify the trial judge’s conclusion that the offending had a significant effect on the complainant and his family.
65. [65]
    The experienced judge described it as “a very serious example of this kind of offence, one of the more serious examples I have seen”.
66. [66]
    The judge identified the aggravating factors as including that it was “a weaponised attack” in company.  The attack continued after the complainant was prone and unable to defend himself.  Significant force was used, and the injuries had an ongoing impact.
67. [67]
    The judge had regard to the appellant’s antecedents.  He was 50 at the time of the offending, and 52 at the date of sentence.  He had a criminal history that included entries for violence, but these were dated.  They included assaults occasioning bodily harm.  The judge had regard to the appellant’s good work history and accepted that the convictions were when he was a younger man.  He had turned his life around.  The appellant was helping with the care of his 77-year-old father at the time of sentence.

The parties’ submissions and the sentence

68. [68]
    The prosecution submitted, after referring to comparable cases, that a sentence of up to 10 years was open and if a sentence of less than 10 years was imposed, the judge should exercise the discretion to declare it a serious violent offence.  Reference was made to the relevant principles and the submission made that the aggravating circumstances suggested that adequate punishment required a longer period in actual custody before eligibility for parole.  The continued vicious assault of a man who was already felled and disarmed was submitted to warrant the declaration, it being a particularly concerning example of the offence.
69. [69]
    Trial counsel for the appellant relied upon the absence of the kind of pre-planning that is involved in home invasion cases and that the appellant did not take a weapon.  The fact that the complainant called around to Ms O'Rourke-Casey’s house on his motorbike and made “a nuisance of himself” explained why the appellant and his son drove to the complainant’s house and was said to mitigate matters to some degree.  Defence counsel accepted that while the baseball bat was not introduced by the appellant, it was taken off the complainant so that “the attack was weaponised”.  Reliance was placed upon the appellant’s history of a busy working life.
70. [70]
    Ultimately, defence counsel submitted that the sentence would be below 10 years, that it “probably should be at the nine year mark” given the comparable cases, but there should not be an SVO declaration.  This was because the incident was “fairly spontaneous”, occurred over a period of probably five to eight minutes, and was not at the highest end of the conduct that often results in this charge, such as an act of gratuitous violence on someone who is simply walking down the street.
71. [71]
    After considering relevant principles and discussing the facts, the judge decided that an SVO declaration was warranted in the exercise of his discretion.  In summary, the case was one of “really serious offending”.  Significant injury was caused by the deliberate actions in using a weapon.
72. [72]
    Because the judge concluded that an SVO declaration was warranted, he reduced the sentence from what it otherwise would have been.  He ordered the appellant be imprisoned for seven and a half years.

Relevant principles

73. [73]
    The principles governing the exercise of the discretion to declare an offence a serious violent offence are not in issue.  They emerge from a number of decisions of this Court including R v Free; Ex parte Attorney-General (Qld)^[22] and R v Lewis; Ex parte Attorney-General (Qld).^[23]

The appellant’s submission

74. [74]
    The appellant submits that the judge failed to identify clearly what features of the case justified the declaration.  I disagree.  The judge did so in referring to a weaponised attack in company and in finding that the attack continued after the complainant was able to break free.  There was no element of self-defence.  The attack continued after the complainant was “prone and unable to defend himself”.  The offence had a significant and enduring effect on the complainant and his family.
75. [75]
    The appellant’s submissions also point to aspects of the case that militated against making a declaration.  These were canvassed and accepted, to some extent, by the judge, being the conduct of the complainant in making threats when he was outside another house and that the offending was of short duration.  However, the judge did not accept a feature contended for by the appellant, namely that the offending could be characterised “as an excessive response to a provoked assault”.
76. [76]
    The judge had regard to the considerations that apply in deciding whether to make an SVO declaration.  As was said in Free, to show that the declaration is fully warranted in the circumstances, it would usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them.^[24]  The trial judge’s remarks identified why he regarded this case as being a very serious one and warranting a declaration, with a consequence that the appellant would be required to serve 80% of the sentence before being eligible for parole.  The attack was sustained, unrelenting, and involved using a weapon to strike a prone, unarmed man to the head and body.  The attack had enduring and lifelong consequences.
77. [77]
    The appellant has not shown that the judge erred in making an SVO declaration.
78. [78]
    The making of an SVO declaration did not render the sentence manifestly excessive.  Had an SVO declaration not been made, then a sentence of nine years or more would have been imposed.  It is unnecessary to refer to the authorities that support that conclusion in circumstances in which the appellant’s counsel ultimately submitted for a sentence of nine years with the possibility of parole eligibility being deferred from four and a half to five years.
79. [79]
    The judge applied established principles in reducing what otherwise would have been a sentence of nine or more years to one of seven and a half years, to take account of the effect of the SVO declaration.  The sentence required the appellant to serve six years before being eligible for parole, being a year longer than defence counsel suggested as open if a nine-year sentence were to be imposed.
80. [80]
    The appellant seeks an order that his sentence be set aside, with a sentence of nine years’ imprisonment with parole eligibility after four and a half years being imposed.
81. [81]
    If an SVO declaration had not been declared, then an appropriate sentence would have been one of nine years with parole eligibility after five years.  A sentence of seven and a half years’ imprisonment with parole eligibility after six years is not manifestly excessive.  It was warranted in all the circumstances.
82. [82]
    I would dismiss the application for leave to appeal against sentence.