R v Sellies-Cullen[2023] QCA 247

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Martin SJA.
2. [2]
   BODDICE JA:  I agree with Martin SJA.
3. [3]
   MARTIN SJA:  On 27 March 2023, the applicant pleaded guilty to three counts and the following sentences were imposed:

4. [4]
   The applicant seeks leave to appeal against the sentence imposed in respect of Count 2 on the basis that it was manifestly excessive in all the circumstances.

The nature of the offences

5. [5]
   On 20 April 2022, the applicant was walking with a group of other young people on a street in Nambour when he came across the complainant.  The complainant was a 41-year-old man who was homeless and all of whose possessions were contained in his backpack.  The group taunted and threatened the complainant and he walked away.  The applicant then separated from the group and followed him.  He confronted the complainant in a carpark and demanded his backpack.  He then produced a large folding knife from his waistband and held it in front of the complainant while demanding his backpack.  The complainant ran away.  The applicant chased him and grabbed the backpack – there  was a struggle.  The complainant was still holding the knife and, during the struggle, swung it repeatedly at the complainant.  It struck the complainant twice.  One blow inflicted a 3cm deep penetrating wound to the back left of his neck and the second blow caused a 20cm long laceration to his lower chest and upper abdomen which penetrated through the skin to the muscle underneath.
6. [6]
   The complainant released the backpack and stumbled away.  The applicant took the backpack and ran off.

The applicant’s history

7. [7]
   The applicant was 18 at the time of the offences and 19 when sentenced.  He has one previous conviction for possession of a knife in a public place.  That offence was committed just one week before the offence for which he was sentenced in this matter.  Other matters personal to the applicant which were taken into account by the sentencing judge included:

1.  the applicant’s history of drug abuse from a young age;

2.  the applicant was probably suffering from undiagnosed ADHD and, perhaps, from PTSD;

3.  the applicant’s use of drugs meant that he was at risk of re-offending;

4.  the result of psychological testing indicated that his risk of re-offending was moderate; and

5.  the applicant was genuinely remorseful and had the support of his family.

The declaration of a Serious Violent Offence

8. [8]
   The sole basis for the applicant’s assertion that the sentence was manifestly excessive was the declaration of a serious violent offence.  That declaration had the effect of postponing any release on parole until 80% of the six-year head sentence had been served.

The principles which inform the making of a declaration of a Serious Violent Offence

9. [9]
   The discretion to make such a declaration arises from s 161A and s 161B of the Penalties and Sentences Act 1992 (Qld):

“161A  When an offender is convicted of a serious violent offence

An offender is convicted of a serious violent offence if—

1.  the offender is—

1.  convicted on indictment of an offence—

1.  against a provision mentioned in schedule 1; or

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

2.  sentenced to 10 or more years imprisonment for the offence, calculated under section 161C; or

2.  the offender is convicted on indictment and declared to be convicted of a serious violent offence under section 161B(3) or (4).

161B  Declaration of conviction of serious violent offence

1.  If an offender is convicted of a serious violent offence under section 161A(a), the sentencing court must declare the conviction to be a conviction of a serious violent offence as part of the sentence.

2.  However, the failure of the sentencing court to make a declaration as required under subsection (1) does not affect the fact that the offender has been convicted of a serious violent offence.

3.  If an offender is—

1.  convicted on indictment of an offence—

1.  against a provision mentioned in schedule 1; or

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

2.  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.

4.  Also, if an offender is—

1.  convicted on indictment of an offence—

1.  that involved the use, counselling or procuring the use, or conspiring or attempting to use, serious violence against another person; or

2.  that resulted in serious harm to another person; and

2.  sentenced to a term of imprisonment for the offence;

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

…”

10. [10]
    In R v Free; Ex parte Attorney-General (Qld),^[1] the Court of Appeal considered matters relevant to the making of a declaration and referred to the observations of the court in R v McDougall and Collas.^[2]  Both of those decisions emphasised that the discretion to make a declaration falls to be exercised as part of the integrated process of arriving at a just sentence.  It is not necessarily limited to cases falling outside a so-called “norm” for a particular offence.
11. [11]
    The following statements from R v McDougall and Collas assist in considering whether a sentence is manifestly excessive:

1.  a critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80% of the head sentence before being able to apply for parole;

2.  the overall amount of imprisonment to be imposed should be arrived at having regard to whether a declaration is made or not;

3.  the considerations able to be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing;

4.  it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them; and

5.  a critical question will be whether the sentence with a declaration is manifestly excessive in the circumstances – it follows that a just sentence may require that the sentence imposed for a declared serious violence offence be toward the lower end of the general range of sentences imposed for such an offence.

12. [12]
    Of particular importance is the observation of the court in [19] to this effect:

“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, and in which the sentencing discretion has miscarried; probably because of an incorrect exercise of the declaration discretion.”

The applicant’s contention

13. [13]
    The applicant’s argument was essentially limited to a submission that the community’s condemnation of the conduct could have adequately been reflected by the imposition of a sentence of seven years imprisonment with no recommendation for release on parole earlier than the standard, that is, after half the sentence has been served.
14. [14]
    That submission only addresses one of the factors which must be considered.

Was the sentence manifestly excessive?

15. [15]
    The offending conduct was serious.  The applicant pursued the complainant after an initial confrontation and swung the knife at him repeatedly with the result that the complainant was injured in two vulnerable areas – the neck and the abdomen.  The offence took place at night and the behaviour of the applicant was persistent.
16. [16]
    The sentencing judge took into account the personal circumstances of the applicant as well as his previous conviction for possession of a knife.  He referred in particular to the need to:

1.  deter others from carrying knives in public places;

2.  protect the community; and

3.  denounce the applicant’s conduct.

17. [17]
    The sentencing judge concluded that those needs outweighed the desire to see the applicant rehabilitated.  Other material before the sentencing judge identified the applicant’s risk of re-offending as “moderate” and that his drug abuse and “psychological make-up” were contributing factors to the commission of the offences.  Those factors remained unaddressed.  His Honour concluded that the applicant constituted a risk to the community because of his “real issue with anger control”.
18. [18]
    The sentencing judge referred to comparable authorities which demonstrated that a sentence in the order of six to seven years would be consistent with those authorities.  His Honour, having considered the matters set out above, moderated the head sentence by setting it at the lower end of the demonstrated range of sentences imposed for similar offences.
19. [19]
    The circumstances giving rise to the grievous bodily harm charge are, regrettably, not uncommon.  They could be regarded as falling within the “norm” for this kind of offence.  His Honour took that into account and then clearly identified matters which justified the exercise of the discretion including general deterrence so far as knife crimes are concerned and the risk the applicant posed to the community.
20. [20]
    While it was open to the sentencing judge to impose a sentence of seven years imprisonment with no declaration, the sentence imposed on Count 2 cannot be regarded as “unreasonable or plainly unjust”.
21. [21]
    I would refuse the application.