R v Gordon[2024] QCA 16

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 12 June 2021 the applicant who was 37 years old and his partner’s 19 year old son (the co-offender) attended at the residence of the complainant and attacked him, as the co-offender had some issue with the complainant.  The details of the attack and the respective roles of the applicant and the co-offender are set out fully in the judgment of Williams J and I will not repeat them.  The co-offender pleaded guilty to two counts of wilful damage (counts 1 and 5), malicious act with intent (count 2), burglary, in the night (count 3) and assault occasioning bodily harm, in company (count 4).  For the most serious offence (count 2), the co-offender was sentenced to imprisonment for seven years and given an eligibility for parole date after serving three years and six months.  He was given concurrent sentences of imprisonment of six months (count 1), two years (count 3), 18 months (count 4) and two months (count 5).
2. [2]
   The applicant was charged jointly with the co-offender in respect of counts 1-4.  He pleaded not guilty and proceeded to trial which took three days.  The jury’s verdict was returned on 9 November 2022.  The applicant was convicted of counts 1, 3 and 4.  He was acquitted of count 2 but convicted of the alternative offence to count 2 of grievous bodily harm.  The sentencing then proceeded on 11 November 2022.
3. [3]
   The applicant was sentenced to imprisonment of seven years and six months for grievous bodily harm.  Concurrent sentences were imposed for count 1 (nine months), count 3 (two years and six months) and for count 4 (18 months).  A serious violent offence declaration was made in respect of the conviction for grievous bodily harm.
4. [4]
   There are two grounds of appeal:

1. The learned sentencing judge’s assessment of the applicant’s criminal history was informed by error which made the criminal history appear to be more serious than it was.
2. The serious violent offence declaration rendered the sentence manifestly excessive, having regard to the sentence imposed on the co-offender and the principles of parity and to the applicant’s offer to plead guilty to grievous bodily harm prior to trial.

5. [5]
   It was apparent from the sentencing hearing, that prior to the hearing the prosecutor had provided the sentencing judge with written submissions (the prosecutor’s written submissions) and copies of material to be tendered on the sentencing, including the comparable authorities.  The sentencing judge observed during the hearing that his Honour had the opportunity to consider them fully.  The assumption that is implicit in ground 1 is that the sentencing judge acted on the error in the prosecutor’s written submissions rather than the applicant’s New South Wales criminal history.  For there to be appellable error, the applicant must show that a relevant mistake of fact was made by the sentencing judge in exercising the sentencing discretion: see House v The King (1936) 55 CLR 499, 505.  Ground 1 is, in effect, an assertion that the sentencing judge made a mistake of fact as to the seriousness of the applicant’s criminal history due to the error in the prosecutor’s submissions.
6. [6]
   The starting point is to consider the extent of the error made in the prosecutor’s written submissions.  They did not purport to displace reference to the New South Wales criminal history but sought to identify “relevant entries of note” and selected seven entries.  In respect of some of them, the prosecutor was able to add additional details of the offending.  The two entries in the prosecutor’s written submissions in which errors were made were:

“b. In 2014 he was sentenced to 12 months imprisonment for two offences of assault occasioning bodily harm he had committed in 2010.

c. Later in 2014 he was sentenced to 18 months imprisonment for two offences of armed with intent to commit an indictable offence. The [applicant’s] associate was accused of stealing. In response to questioning the [applicant] acted in a threatening manner, kicking over furniture before picking up a piece of wood and threatening a witness with it.”

7. [7]
   In relation to paragraph (b), the entry on 10 October 2014 in the Lismore Local Court in the criminal history showed that the applicant was convicted of one assault occasioning actual bodily harm (DV) committed on 9 February 2010 for which he was sentenced to 12 months’ imprisonment commencing on 7 August 2015 and that “severity appeal lodged”.  It is part of the same entry in the criminal history that the matter went to the Tamworth District Court on 15 December 2014 where the conviction was confirmed and the commencing date of the 12 months’ imprisonment was altered to 8 August 2015 and he was given a non-parole period of three months commencing on that same date and concluding on 7 November 2015 with release subject to supervision.  The applicant therefore had some success on the appeal in mitigating the sentence by having the last nine months on parole, but the underlying sentence remained 12 months’ imprisonment.
8. [8]
   The error made in the prosecutor’s outline was in referring to two offences of assault occasioning bodily harm but the prosecutor correctly referred to the one sentence that had been imposed for the offence of 12 months’ imprisonment which was a guide to the seriousness of the offending, even though it was mitigated on appeal by the addition of a parole order to take effect after the applicant had served three months in custody.
9. [9]
   In relation to paragraph (c), the entry on 8 October 2014 in the Gunnedah Local Court in the criminal history showed that the applicant was convicted of one charge of armed with intent to commit indictable offence committed on 1 April 2014 for which he was sentenced to 18 months’ imprisonment commencing on 8 October 2014 and concluding on 7 April 2016 with a non-parole period of 12 months and release subject to supervision commencing on 8 October 2015.  The entry noted that “severity appeal lodged”.  It is also part of the same entry in the criminal history that the matter went to the Tamworth District Court on 15 December 2014 in which the sentence of imprisonment of 18 months with release on parole from 8 October 2015 was confirmed.  Even though the prosecutor’s written submissions referred to the sentence of 18 months’ imprisonment applying to two offences of armed with intent to commit an indictable offence, the submissions refer only to the one sentence of 18 months’ imprisonment that was imposed for the offence and the details of the offending that are then set out in the written submissions refer to one episode of offending.  The extent of the error made by the prosecutor was referring to two offences but in the context of referring accurately to the one sentence of 18 months’ imprisonment that was imposed for the one offence and where one episode of offending only was described in the submissions.
10. [10]
    The prosecutor did not address in oral submissions the detail of the entries set out in paragraphs (b) and (c) of the written submissions.  Neither the written submissions nor the oral submissions of the applicant’s counsel before the sentencing judge referred to those entries.
11. [11]
    At the commencement of the sentencing remarks the sentencing judge observed:

“And quite frankly it is hard to comprehend, and somewhat beggars belief that you, as a grown man, would become such an active and willing participant in something that you really had no part in; although, having now had the benefit of reading about your criminal history, it explains and confirms your underlying lawless attitude and propensity for violence.”

12. [12]
    In dealing specifically with the applicant’s criminal history, the sentencing judge stated in the sentencing remarks:

“Your criminal history is both extensive and records persistent, serious criminal offending over all of your adult life. It bespeaks a propensity in the first place for committing offences of dishonesty, property offending, and drug offending, which would be consistent with what I have read about your drug-abuse problem in [your defence counsel’s] outline. And it seems clear from your histories, both in New South Wales and Queensland, that has given way over the years to being a person interested in engaging yourself in serious, violent offending. Your criminal histories from both states spans 20 years, and there have been many, many orders of imprisonment.

Your violent offending on at least two of those occasions has been for threatening or injuring witnesses. It has not been clarified precisely what you did there. And that is interesting, when you call out ‘no names’ as you are leaving on this occasion. There have been many other convictions for offences of assault or violent offending, including assault occasioning bodily harm or offences where you have been armed. There is sexual offending, and there is the most recent stalking convictions which involved, I understand it, a threat to kill against a former domestic partner. There has, of course, also been domestic violence offending.”

13. [13]
    Taking into account that the subject offending was committed in June 2021, the applicant’s criminal histories spanned approximately 20 years with “many orders of imprisonment”.  His offending commenced in November 2002 with the larceny for which he was sentenced to two months’ imprisonment commencing 3 August 2003.  He was sentenced to concurrent terms of imprisonment commencing on the same date for a series of property and drug offences, including imprisonment for 22 months and 15 days (with a non-parole period of four months and 15 days) for possess housebreaking implements and two counts of break and enter building (steal) value less than $15,000.  There were further property and drug offences committed in 2004 resulting in imprisonment for nine months commencing on 16 February 2004.  A concurrent sentence of nine months’ imprisonment commencing on the same day was imposed for an assault occasioning actual bodily harm committed on 27 March 2004.  The applicant was imprisoned for two years commencing on 12 July 2005 (with a non-parole period of 18 months) for aggravated break and enter with intent in company and given concurrent sentences of 12 months for possess implements to enter/drive conveyance, take and drive conveyance without consent of owner and unlicensed driving.  The applicant was sentenced in February 2008 to probation and parole, a suspended sentence and a community service order for property offences committed in August 2007.  He was sentenced on 27 June 2008 to imprisonment for 18 months (with a non-parole period of nine months) for break and enter building (steal) value less than $15,000.  The applicant was not sentenced separately on the same date for an aggravated assault where victim was under the age of 16 years but it was taken into account in the sentencing on that date.
14. [14]
    The applicant was then charged on 25 February 2010 with an assault occasioning actual bodily harm (DV) that was committed on 9 February 2010 which was the assault occasioning actual bodily harm (DV) that is the subject of paragraph (b) of the prosecutor’s written submissions.  The fact that he was not sentenced for that offence until 10 October 2014 is explicable by the applicant’s Queensland criminal history that commences with an unlawful possession of suspected stolen property committed on 26 February 2010.  There is other minor offending in the Queensland criminal history committed in September 2010.  The applicant was then sentenced to two years’ imprisonment on 9 May 2011 with a parole release date after serving six months in custody for unlawful use of a motor vehicle and burglary and commit indictable offences that were committed respectively in October and December 2010.  The Queensland criminal history records other minor offending for which the applicant was dealt with in 2012 and 2013.
15. [15]
    The applicant returned to New South Wales as he committed the offence of shoplifting there on 30 November 2013.  He was dealt with on 8 October 2014 for the offence of armed with intent to commit indictable offence committed on 1 April 2014 that was the subject of paragraph (c) in the prosecutor’s written submissions.  This offence involved the applicant’s picking up a piece of wood and threatening a witness with it.  He had also been dealt with at the same time for a larceny offence committed on 29 July 2014 for which he was given a concurrent sentence of imprisonment of nine months commencing on 8 October 2014.  The applicant was sentenced on 20 April 2015 for the offence of threaten or cause injury to person for being witness committed on 10 October 2014 for which the sentence after appeal was two years’ imprisonment commencing on 7 November 2015 with a non-parole period of 18 months.  That offence arose out of a hearing in court concerning an earlier assault where his pregnant former partner was the complainant and where the applicant appeared by video and called the complainant an insulting name and ran his finger across his throat.
16. [16]
    On 4 June 2018 the applicant was sentenced to 12 months’ imprisonment commencing on 9 March 2018 for shoplifting committed on 8 November 2017 (with a non-parole period of four months).  He was then given an overlapping sentence of four months’ imprisonment commencing on 9 April 2018 for shoplifting that was committed on 22 November 2017.  On 4 June 2018, the applicant was sentenced for an assault occasioning actual bodily harm (DV) committed on 12 January 2018 for which he was given 20 months’ imprisonment commencing on 9 August 2018 with a non-parole period of 10 months.  He was also dealt with on the same date for common assault (DV) committed on 12 January 2018 for which he was given 12 months’ imprisonment commencing on 9 June 2018 with a non-parole period of four months and for contravene prohibition/restriction in AVO (domestic) committed on 31 January 2018 for which he was given a bond involving 18 months’ supervision.  He was then dealt with on 9 July 2018 for a like contravention for which he was sentenced to nine months’ imprisonment commencing on 9 March 2018 (with a non-parole period of six months) and act with intent to influence witness also committed on 9 March 2018 for which he was imprisoned for 15 months commencing on 9 March 2018.
17. [17]
    The applicant committed further offences on 4 July 2018 while imprisoned.  He was sentenced to one month’s imprisonment as a concurrent sentence for possess prohibited drug and a further term of nine months’ imprisonment commencing on 9 June 2019 for inmate escape/attempt to escape from lawful custody (with a non-parole period of two months).  On 20 April 2020, he was dealt with for another contravene prohibition/restriction in AVO (domestic) committed on 2 December 2019 for which he was convicted with no other penalty.  He was then sentenced to an intensive correction order of 12 months commencing on 17 July 2020 for offences committed on 23 March 2020, namely destroy or damage property of value less than $2,000, contravene prohibition/restriction in AVO (domestic) and stalk/intimidate intend fear physical etc harm.  The circumstances of the offences committed on 23 March 2020 were detailed by the prosecutor before the sentencing judge.  The complainant for those offences was a former partner of the applicant.  When she arrived home, the applicant was in her house going through her property and refused to leave.  When the complainant’s adult son intervened, the applicant left but stayed out the front of the complainant’s house and abused her saying “You wait till tonight, I’ll slit your throat”.  When the complainant’s adult son escorted the complainant from the house and into her car, the applicant rushed towards the car and stabbed one of the tyres with a pair of scissors but the complainant was able to drive away.
18. [18]
    The applicant moved to Queensland on 18 August 2020.  The applicant was therefore under the intensive correction order imposed on 17 July 2020 when he committed the subject offences.
19. [19]
    As Ms Dennis of counsel on behalf of the respondent on the hearing of this application submitted, there were at least two occasions on which the applicant was dealt with for threatening or injuring witnesses – the armed with intent to commit indictable offence committed on 1 April 2014 and the implied threat of violence to the complainant who was his former partner by the gesture of running his finger across his throat that was committed on 10 October 2014.  There were also at least two offences where the applicant was armed – the offence committed 1 April 2014 when he was armed with a piece of wood and the offence of destroy or damage property when he slashed the complainant’s car tyre with a pair of scissors on 23 March 2020.
20. [20]
    As the detailed analysis of the applicant’s criminal history shows, the sentencing judge’s relatively brief description in the sentencing remarks set out above of the applicant’s extensive prior criminal offending reveals no error of fact as to the nature and seriousness of his prior offending and criminal history.  Even if the sentencing judge acted on the relatively narrow errors made in the prosecutor’s written submissions, they did not alter in a material way the true nature and extent of the applicant’s persistent and violent criminal offending that was the relevant finding for the purpose of the sentencing.  The applicant does not succeed on ground 1.
21. [21]
    There are two aspects of the sentencing that the applicant relies on to assert in ground 2 that the declaration that the conviction for grievous bodily harm was a serious violent offence made the sentence manifestly excessive, namely lack of parity with the sentence imposed on the co-offender and the failure to take into account the applicant’s offer to plead guilty to the offence of grievous bodily harm prior to the trial.
22. [22]
    The applicant’s trial counsel’s submissions on the sentencing hearing sought to rely on the applicant’s cooperation with the administration of justice by his making a submission to the prosecution on 14 June 2022 offering a plea of guilty to grievous bodily harm in substitution for the charge of malicious act with intent in conjunction with seeking factual amendments removing the allegation that the applicant was armed with a knife and that he stabbed the complainant.  The prosecution had rejected this submission.  The applicant did not plead guilty to the offence of grievous bodily harm as an alternative to count 2 at the commencement of his trial.  The applicant did not give evidence at the trial, as was his right, but his defence was conducted on the basis that the prosecution could neither prove beyond reasonable doubt that he was armed with a knife when he attended with the co-offender at the complainant’s residence nor that he stabbed the complainant.  The applicant obtained a benefit from proceeding to trial, as he was acquitted of count 2.  His trial counsel had also argued on his behalf that he should be acquitted of the alternative offence of grievous bodily harm which the jury did not accept.
23. [23]
    The applicant relies on the approach in R v Lyon [2006] QCA 146 at [27]-[28] to the effect that an offender’s offer to plead guilty to the offence of which he was subsequently convicted is a relevant matter either as supportive of the offender’s cooperation with the administration of justice or as demonstration of remorse to be brought into account in the exercise of the sentencing discretion, even if the offender did not plead guilty to that offence at the trial.
24. [24]
    The principle applied in Lyon was based on observations in R v Marshall [1995] 1 Qd R 673 at 673 (per Fitzgerald P) (and with observations made to similar effect by Pincus JA at 674-675).  The relevant paragraph from the judgment of Fitzgerald P stated:

“In my opinion, the appellant’s offer to plead guilty to the only offence of which he was convicted was a relevant matter to be brought to account in the exercise of the sentencing discretion. Such a conclusion is clearly consistent with the policy enunciated in s. 13 of the Penalties and Sentences Act 1992. What weight is given to the offer may depend upon a variety of other circumstances, including any terms attached to the offer and the time at which it is made.”

25. [25]
    That notion that the weight to be given to such an offer to plead guilty may be affected by a variety of circumstances was taken up by Jerrard JA in Lyon (with whom Douglas J agreed) at [28] after quoting from Fitzgerald P’s judgment in Marshall:

“Accepting that proposition as both sensible and authoritative, the benefit from such offers in any particular case depends upon the extent to which the person convicted co-operates with the administration of justice during the trial, or offers to, or demonstrates remorse. In this matter Mr Lyon’s counsel on appeal did not suggest Mr Lyon made any admissions of fact which would have narrowed the issues in dispute at the trial, a point remarked upon as relevant by Byrne J in R v Marshall (at 676). Mr Lyon, having made no admissions about either specific matters nor a plea of guilty in the jury’s presence, can gain this benefit from his earlier written offers to plead guilty, that he had thereby been prepared to co-operate with the administration of justice, and he was justified in his plea of not guilty to attempted murder. He was entitled to some reduction in his sentence for that reason, a matter which the learned judge, in an otherwise careful sentencing exercise, did not take into consideration, not having been told of it.”

26. [26]
    See also Western Australia v Auckram (2015) 229 A Crim R 397 at [97]-[102] and particularly at [100] (per Buss JA) and at [165]-[168] (per Mazza JA).
27. [27]
    As Marshall, Lyon and Auckram show, the relevance of, and any weight to be given to, an offer to plead guilty to the offence of which the offender is convicted by a jury depends on all the circumstances.  Whether the offer indicated cooperation with the administration of justice at the time that it was made or remorse, it may be negated by the subsequent conduct of the offender in relation to the trial.  On the hearing of the application, Ms Horne of counsel conceded appropriately that there was no remorse associated with the offer and that the way in which the trial was conducted meant that significant weight could not be given to the offer to plead guilty as cooperation with the administration of justice.  It was relevant that the offer sought to be conditioned on a factual basis that the applicant was not armed with a knife and did not himself stab the complainant, but on the basis of the evidence adduced at the trial, the sentencing judge found the applicant was armed with a knife and that he stabbed the complainant at least once himself.  In the circumstances of the applicant’s trial, it was not surprising that the sentencing judge made no mention of the prior offer of the applicant to plead guilty to grievous bodily harm, as that offer was of little or no weight on account of cooperation with the administration of justice by the time the trial concluded.
28. [28]
    The applicant emphasises the disparity in the sentences imposed on him and his co-offender by calculating that the co-offender might only serve three years and six months of the sentence of seven years’ imprisonment imposed on him for count 2, whereas the applicant is liable to serve six years in custody before becoming eligible for parole after serving 80 per cent of the sentence of seven years and six months imposed for the less serious alternative offence to count 2 of grievous bodily harm.
29. [29]
    There was no dispute on the hearing of the application as to the parity principle that applies in sentencing co-offenders where there is “a justifiable sense of grievance” after taking into account any differences in the offences for which they were convicted and the different circumstances of the co-offenders: Green v The Queen (2011) 244 CLR 462 at [30]-[31].
30. [30]
    The co-offender had a misguided reason in attacking the complainant.  Consistent with the applicant’s criminal history of violence, he involved himself with the co-offender in attacking the complainant who was unknown to him.  The applicant was not deterred by the intensive correction order that applied to him at the time of the subject offences.  Even though the co-offender pleaded guilty to count 2 that was the more serious offence of malicious act with intent than the alternative offence of grievous bodily harm of which the applicant was convicted after trial, the co-offender’s lack of prior criminal history, youth, good prospects for rehabilitation and guilty pleas mean that there is not the marked disparity in sentences between co-offenders that would justify success for the applicant on ground 2.  The declaration that the applicant was convicted of a serious violent offence therefore did not make the sentence imposed for the offence of grievous bodily harm “unreasonable or plainly unjust”.  The applicant does not succeed on ground 2.
31. [31]
    The order I propose is: Application for leave to appeal refused.
32. [32]
    BOND JA:  I agree with the reasons for judgment of Mullins P and with the order proposed by her Honour.
33. [33]
    WILLIAMS J:  The applicant seeks leave to appeal a sentence imposed on 11 November 2022 following a trial in the District Court.  The applicant was convicted of four counts, namely wilful damage, grievous bodily harm,^[1] burglary in the night and assault occasioning bodily harm in company.  A sentence of seven and a half years imprisonment with a serious violent offence declaration was imposed in respect of the grievous bodily harm,^[2] with lesser concurrent sentences on the other counts.^[3]
34. [34]
    The applicant relies on two grounds of appeal:^[4]

    1. Ground one: the learned sentencing judge’s assessment of the applicant’s criminal history was informed by error, which made the criminal history appear to be more serious than it was.
    2. Ground two: the serious violent offence declaration rendered the sentence manifestly excessive, having regard to the sentence imposed on the applicant’s co-offender and the principles of parity, and the applicant’s offer to plead guilty to grievous bodily harm prior to trial.
35. [35]
    The applicant submits that leave to appeal should be granted, the appeal allowed and the sentence for grievous bodily harm reduced to seven years imprisonment with parole eligibility after serving 50 per cent of the term.
36. [36]
    The respondent contends that grounds one and two are not made out and that the application for leave to appeal against sentence ought be refused.

Did the sentencing judge make an error in assessing the applicant’s criminal history?

37. [37]
    The applicant’s ground of appeal is that there was specific error by the sentencing judge in the characterisation of the applicant’s criminal history.  It is contended that the sentencing judge’s assessment of the applicant’s previous serious violent offending was informed by two errors, which were not corrected at the time of the sentence.
38. [38]
    The applicant had a criminal history in Queensland and New South Wales.
39. [39]
    Firstly, the applicant submits that in the sentencing remarks the sentencing judge referred to the applicant having been convicted at least twice of “threatening or injuring witnesses”.
40. [40]
    The New South Wales criminal history shows that the applicant had in fact only once been convicted of the offence of “threaten or cause injury to person for being witness”.  However, the offence has two entries in the criminal history: one at first instance and one on appeal.
41. [41]
    There is also a similar offence of “act with intent to influence witness” recorded in the New South Wales criminal history, but the description does not indicate violence was used.
42. [42]
    Secondly, the relevant entries in both criminal histories were summarised in the Crown’s written submissions.  Those written submissions incorrectly stated the number of convictions in New South Wales for two specific offences.
43. [43]
    The error appears to have arisen as a result of how the matters are recorded in the New South Wales criminal history, in that both entries involve a conviction at first instance and then an appeal.
44. [44]
    The relevant offences are as follows:

    1. In 2014, the applicant was convicted of assault occasioning bodily harm committed in 2010.  This appears in the New South Wales criminal history twice: namely at first instance on 10 October 2014 and on appeal on 15 December 2014.
    2. Also in 2014, the applicant was convicted of armed with intent to commit an indictable offence.  This offence also appears twice in the criminal history, namely at first instance on 8 October 2014 and on appeal on 15 December 2014.
45. [45]
    Further, in the sentencing remarks the sentencing judge refers to “many” convictions for “offences of assault or violent offending” where the applicant was armed.  It is submitted that these convictions were fewer than appeared in the New South Wales criminal history, particularly given the duplication identified in the Crown’s written submissions.
46. [46]
    The applicant contends that the applicant had previously been convicted of a total of three assault occasioning bodily harm offences, namely in 2004, 2010 and 2018.  However, he was only armed in one offence, in 2014.
47. [47]
    The applicant’s other violence offence was a common assault and he had also breached domestic violence orders.
48. [48]
    In response, the respondent accepts that the New South Wales criminal history reveals only one entry of assault occasioning bodily harm committed in 2010 and one offence of armed with intent to commit an indictable offence in 2014.
49. [49]
    However, the respondent submits that the sentencing judge’s characterisation and consideration of the criminal history was not erroneous and there was consequently no material error infecting the sentencing discretion.
50. [50]
    Firstly, it is submitted that the sentencing judge referred only to the applicant having been convicted at least twice of “threatening or injuring witnesses”.  The language does not refer to the fact that the applicant had twice been convicted of committing the offence of “threatening or cause injury to person for being a witness” which is the actual offence in the New South Wales criminal history.  Further, the respondent submits, it was never submitted to the contrary by the prosecutor.
51. [51]
    Further, it is submitted that the statement by the sentencing judge was accurate when the facts of the respective offences placed before the Court are considered.
52. [52]
    Specifically:

    1. The facts of the offence of armed with intent to commit an indictable offence included threatening a witness with a piece of wood.
    2. The offence of threatening or cause injury to a person for being a witness offence, involved him abusing his pregnant ex-partner and running his finger across his throat during a court hearing for an assault offence.
    3. He was convicted of an offence of act with intent to influence witness in 2018, the facts of which were unknown.
    4. The series of offences including stalking and contravention of domestic violence orders for which he was convicted in 2020 included threatening his ex-partner by pointing at her and saying, “you wait til tonight, I’ll slit your throat”.
53. [53]
    Secondly, the respondent submits that the sentencing judge’s statement that “[t]here have been many other convictions for offences of assault or violent offending, including assault occasioning bodily harm or offences where you have been armed” is not a mischaracterisation of the applicant’s criminal history.
54. [54]
    Considering the New South Wales and Queensland criminal histories of the applicant, the respondent submits that the applicant has been convicted “many times” of offences for assault, violence or where armed.  Specifically, the respondent points to the following:

    1. Three offences of assault occasioning actual bodily harm in 2004, 2010 and 2018.
    2. The offence of armed with intent to commit an indictable offence in 2014, during which he was threatening and armed with a piece of wood.
    3. The offence of threatening a person for being a witness, in which he impliedly threatened violence to his ex-partner by gesture.
    4. The offences of common assault, assault occasioning actual bodily harm, and contravention of a domestic violence order in 2018 against his sister and his own three-year-old son.
    5. The final group of domestic violence offences against his ex-partner in 2020, involving entering her house while she was out, searching through her property, refusing to leave, abusing her, including threatening to “slit her throat” and stabbing one of her car tyres with a pair of scissors when she attempted to flee.
55. [55]
    The applicant’s criminal history also includes a number of contravene domestic violence order offences and two offences of being in possession of “tools of a trade” for property offences.
56. [56]
    It is in all of these circumstances that the respondent submits that the sentencing judge did not mistake, misstate, mischaracterise or misunderstand the nature of the applicant’s criminal history, despite the misstatement by the Crown prosecutor in the written submissions.
57. [57]
    Accordingly, the respondent contends that the first ground is not made out.
58. [58]
    When the New South Wales criminal history is examined, it is apparent that the written submissions on behalf of the Crown did incorrectly state two offences where there was only one offence in respect of:

    1. the 2014 conviction for assault occasioning bodily harm committed in 2010; and
    2. the 2014 conviction for the offence of armed with intent to commit an indictable offence.
59. [59]
    The sentencing judge initially summarised the applicant’s criminal history in general terms as follows:

“Your criminal history is both extensive and records persistent, serious criminal offending over all of your adult life. It bespeaks a propensity in the first place for committing offences of dishonesty, property offending, and drug offending, which would be consistent with what I have read about your drug-abuse problem in [the applicant’s] outline. And it seems clear from your histories, both in New South Wales and Queensland, that has given way over the years to being a person interested in engaging yourself in serious, violent offending. Your criminal histories from both states spans 20 years, and there have been many, many orders of imprisonment.”

60. [60]
    The sentencing judge then continued:

“Your violent offending on at least two of those occasions has been for threatening or injuring witnesses. It has not been clarified precisely what you did there. And that is interesting, when you call out ‘no names’ as you are leaving on this occasion. There have been many other convictions for offences of assault or violent offending, including assault occasioning bodily harm or offences where you have been armed. There is sexual offending, and there is the most recent stalking convictions which involved, I understand it [sic], a threat to kill against a former domestic partner. There has, of course, also been domestic violence offending.” (emphasis added)

61. [61]
    This is the extent of the sentencing judge’s engagement with the criminal histories.  Whilst his Honour does refer in general terms to some particular offending, it is a “rolled up” reference to the particular convictions recorded in the criminal histories.
62. [62]
    The following specific statements in the sentencing remarks are particularly relevant to the first ground of appeal:

    1. The reference to plural “offences” where armed, as the applicant was only convicted of one offence of being armed.^[5]  The error in the respondent’s written submissions in relation to this offence of being armed has direct bearing: the written submissions refer to “two offences of armed with intent to commit an indictable offence”.^[6]
    2. The reference to “two … occasions” of “threatening or injuring witnesses” and the statement that “it has not been clarified precisely what you did there”.  This appears to conflate two distinct offences: “threaten or cause injury to person for being a witness” and “act with intent to influence witness”.  The comment that it has not been “clarified precisely” what the applicant did “there”^[7] can only relate to the July 2018 “act with intent to influence witness”, as particulars of the 2015 offence of “threaten or cause injury to person for being a witness” were included in the respondent’s written submissions^[8] and no details were provided for the July 2018 offence.
63. [63]
    It is clear from the sentencing remarks that the applicant’s criminal history was determinative in the sentencing judge distinguishing the applicant’s conduct from that of his co-offender, Mr Sadowski, when considering parity issues.  Further, the applicant’s criminal history was relevant to the sentencing judge’s consideration of the factors relevant to whether a serious violent offence declaration was made.
64. [64]
    In these circumstances, it is difficult to conclude that the two inaccurate statements in the sentencing remarks in respect of relevant offences do not reflect that the sentencing judge’s assessment of the applicant’s criminal history was informed by error.  These two inaccurate statements do have the impact of making the applicant’s criminal history appear more serious than it in fact was.
65. [65]
    Whether these two inaccurate statements are properly characterised as mistakes, misstatements, mischaracterisations or misunderstandings, they are specific factual errors by the sentencing judge in matters which were material to the exercise of the sentencing discretion.
66. [66]
    Accordingly, the first ground of appeal is made out.  It is then necessary to re-exercise the sentencing discretion to ascertain whether the sentence should be varied or whether there should be no variation to the sentence.

What is the appropriate sentence in the re-exercise of the sentencing discretion?

67. [67]
    While it is not strictly necessary to consider the second ground of appeal given the first ground has been made out, the submissions in respect of the second ground are of assistance in considering what is the appropriate sentence in re-exercising the sentencing discretion.  This is particularly so in respect of parity considerations and whether it was appropriate to make a serious violent offence declaration in all of the circumstances.
68. [68]
    The applicant was previously sentenced as follows:

    1. Count 1 – wilful damage: 9 months imprisonment.
    2. Count 2 (alternative) – grievous bodily harm: 7.5 years imprisonment with a serious violent offence declaration.^[9]  Parole eligibility therefore at 80 per cent of the term.
    3. Count 3 – burglary, in the night: 2.5 years imprisonment.
    4. Count 4 – assault occasioning bodily hard, in company: 18 months imprisonment.
69. [69]
    The applicant contends that the sentence for grievous bodily harm should be varied to vacate the serious violent offence declaration and impose a sentence of seven years imprisonment with parole eligibility after serving 50 per cent of the term.
70. [70]
    It is implicit in the respondent’s submissions that there should be no variation to the sentence.
71. [71]
    It is necessary to consider the relevant factors pursuant to s 9(1) of the Penalties and Sentences Act 1992 (Qld).
72. [72]
    The applicant was 37 years of age at the time of the offences and was 38 years old when convicted.  He is currently 39 years of age.  He was convicted after a three-day trial in November 2022.
73. [73]
    The applicant had been in pre-sentence custody for a period of 513 days (being 1 year and 5 months).  This time was wholly declared as time served under the sentence.
74. [74]
    As discussed previously, the applicant has a criminal history in Queensland and New South Wales and has previously served terms of imprisonment.  He has been convicted of violent offences, including one conviction of armed with intent to commit an indictable offence.^[10]
75. [75]
    The applicant was on bail and was subject to a 12-month community corrections order at the time of the offending in 2021.  The applicant was considered unsuitable for community-based orders as reflected in the report dated 29 April 2022,^[11] and his compliance was described as mixed.
76. [76]
    The applicant’s antecedents include that he had a deprived upbringing and had battled drug addiction.  The applicant first used amphetamine and heroin at the age of 17 and developed a psychosis disorder as a result of drug use.
77. [77]
    In respect of the factual circumstances of the offending, following the trial and jury verdict these were summarised by the respondent in the written submissions at [17] for the purposes of the sentence.^[12]  The applicant agreed with these facts apart from [17(i)], which was disputed.
78. [78]
    The relevant facts can be summarised as follows:

    1. The applicant’s co-offender was Mr Jayden Sadowski.
    2. On 12 June 2021, the applicant drove Mr Sadowski to the complainant’s home.^[13]
    3. The offending was premeditated.  Both the applicant and Mr Sadowski were armed with knives.^[14]
    4. The applicant did not know the complainant and there was no satisfactory explanation for his offending.^[15]
    5. The car was parked where the occupants would not see them and the applicant and Mr Sadowski entered through the dark back gate.^[16]
    6. The applicant and Mr Sadowski each damaged the types of the complainant’s car.^[17]  (Count 1 on the indictment in respect of both defendants).
    7. The complainant was inside his home at the time with several acquaintances.  The complainant saw the offenders and went outside and asked what they were doing there.^[18]
    8. Mr Sadowski assaulted the complainant first, stabbing him in the shoulder blade.^[19]  The applicant stabbed the complainant at least once: the injury to under his right armpit.^[20]  (Count 2 on the indictment.  Mr Sadowski pleaded guilty to malicious act with intent.  The applicant was found guilty of the lesser count of grievous bodily harm).
    9. During the altercation, the complainant sustained at least seven wounds, including the most serious on the back just below the left shoulder blade, causing a tension pneumothorax.^[21]  The applicant must have been aware of Mr Sadowski’s conduct in stabbing the complainant several times, even if he only stabbed the complainant once.^[22]
    10. The applicant participated in the assault while the complainant was prone on the ground.^[23]
    11. The complainant was further assaulted with kicks and punches whilst seated on the ground against his car tyre.^[24]  It is contentious whether the applicant engaged in this conduct or whether he was a party to it.^[25]
    12. The complainant retreated into his home and the applicant and Mr Sadowski followed the complainant inside.  It must have been apparent that the complainant had been stabbed multiple times and was significantly injured.^[26]
    13. The complainant was further assaulted by being punched, kicked and elbowed.^[27]  (Counts 3 and 4 on the indictment in respect of both defendants).
    14. Mr Jayden Mann got Sadowski off the complainant twice and then Mr Sadowski punched a hallway wall.^[28]  (Count 5 on the indictment, in respect of Mr Sadowski only).
    15. Mr Mann kicked the applicant in the face.  The applicant desisted only after he had been assaulted by Mr Mann.^[29]
    16. The applicant and Mr Sadowski left and the applicant yelled “no names”.^[30]
    17. The applicant showed no concern for the injured complainant, but the injuries must have been apparent to the applicant.^[31]
    18. The police attended the applicant’s home later that morning search for Mr Sadowski (as the applicant lived with Mr Sadowski’s mother).  The applicant lied to police, saying that Mr Sadowski had cut off his finger while fishing and had gone to the hospital.  Further, the applicant effectively denied having left the house that evening in his car.^[32]
79. [79]
    It is not contentious that the parity principle applies in respect of co-offenders charged with the same offence (or offences) but it also applies to offences arising out of the same criminal enterprise.^[33]  Here the applicant and Mr Sadowski where changed with the same offences.^[34]  Accordingly, the issue of parity in sentences arises for consideration.
80. [80]
    The authorities recognise that different circumstances of co-offenders, including degrees of criminality and all components of the sentence are to be considered, not just the head sentence.^[35]  Relevant differences may justify a disparity in the sentences.^[36]
81. [81]
    The co-offender, Mr Sadowski, was 19 years of age at the time of the offences and had no criminal history.  He was sentenced on 20 September 2022 following a plea of guilty as follows:

    1. Count 1 – wilful damage: 6 months imprisonment.
    2. Count 2 – malicious act with intent: 7 years imprisonment.^[37]  No early parole eligibility ordered, therefore parole eligibility at three and a half years.
    3. Count 3 – burglary, in the night: 2 years imprisonment.
    4. Count 4 – assault occasioning bodily hard, in company: 18 months imprisonment.
    5. Count 5 – wilful damage: 2 months imprisonment.^[38]
82. [82]
    Byrne KC DCJ in imposing the sentence on Mr Sadowski recognised that a serious violent offence declaration could be justified but found that the mitigating features^[39] justified leniency.  No declaration was made but also no order was made reducing the parole eligibility date below 50 per cent of the term.
83. [83]
    The disparity in the sentence is in respect of Count 2 and the alternative (in the case of the applicant): 7 years compared to 7.5 years and the serious violence offence declaration.  The practical difference between the two sentences is 2.5 years in custody.^[40]
84. [84]
    Relevant to this issue, the applicant contends that:

    1. Grievous bodily harm with intent would ordinarily attract a more severe penalty than grievous bodily harm simpliciter, but the principle is not inflexible.
    2. There will be an overlap between the high end of the range for the lesser offence and the low end of the range for the more serious offence.^[41]
    3. If the applicant and Mr Sadowski had been convicted of the same offences and been equally culpable, then the disparity in their personal circumstances and criminal histories may have justified disparate sentences.
    4. However, the disparity in the sentence imposed on the applicant was not justified by his mature age and relevant history, taking into account his conviction for a less serious offence and his lesser role in the offending.^[42]
85. [85]
    The difference in the seriousness of the offending arises in respect of the element of intent.  The basis of the applicant’s sentence on the alternative to Count 2 is that he and Mr Sadowski intended to assault the complainant, but not that he intended, or knew Mr Sadowski intended, to cause the complainant grievous bodily harm.
86. [86]
    The maximum penalties also illustrate the difference in the offending.  Count 2 for Mr Sadowski had a maximum penalty of life imprisonment, while the alternative count for the applicant had a maximum penalty of 14 years imprisonment.
87. [87]
    The considerations relevant to the re-exercise of the sentencing discretion in respect of the applicant include:

    1. There is a discretion to declare the applicant to have been convicted of a serious violent offence as part of the sentence where the head sentence is more than 5 years but less than 10 years.^[43]
    2. There is no need to show that the offending is “outside the norm” before a declaration could be made.^[44]
    3. The exercise of the discretion is to take into account the consequences of making the declaration.^[45]
    4. A critical matter is whether the offence warrants a sentence requiring the offender to serve 80 per cent of the head sentence before being able to apply for parole.
    5. A just sentence resulting from a balancing exercise may require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences.
88. [88]
    The respondent submitted at the sentence hearing that the applicant offered no remorse or insight into the offending.  The respondent in particular pointed to the following:

    1. In cross-examination of the witnesses, the case on behalf of the applicant painted the complainant as the aggressor; and
    2. The applicant, through his counsel, denied being armed.
89. [89]
    The sentencing remarks expressly refer to point (a) in the way the trial was conducted.  The sentencing judge concluded that this was rejected by the jury as it did not make any sense and “did not sit with all of the evidence”.^[46]
90. [90]
    Further, the sentencing judge observed that this was a case where all allegations were denied and all matters were taken to trial.  Additionally, there was no offer of a plea to the “natural alternative to count 2”, nor did the applicant “[accept] responsibility in respect to the other counts”.^[47]
91. [91]
    The applicant acknowledges in the appeal submissions that the trial was conducted on the basis he did not have a knife and that the complainant attacked him first.^[48]
92. [92]
    The applicant also refers in the appeal submissions to the applicant’s offer to plead guilty to the offence of which he was ultimately convicted (the alternative to Count 2).  The offer to plead guilty was not mentioned in oral submissions at first instance or in the sentencing remarks.  It was mentioned expressly in the applicant’s sentencing submissions as follows:

“11. Although Mr Gordon has taken the matter to trial he has somewhat cooperated with the administration of justice through his making of admissions in the trial which have saved time and resources.  Additionally, a submission was sent to the Crown offering a plea of guilty to grievous bodily harm in substitution for the charge of malicious act with intent on 14 June 2022.  Factual amendments removing the allegation that Mr Gordon was armed with a knife and that he stabbed the complainant were also sought.  This submission was rejected…”

93. [93]
    This is as high as the offer can be put and there is no specific evidence in respect of the offer.
94. [94]
    The applicant submits that even absent remorse, the earlier offer to plead guilty to the charge of which he was ultimately convicted indicated:

    1. a preparedness to cooperate with the administration of justice; and
    2. that he was justified in his plea of not guilty to malicious act with intent.
95. [95]
    The applicant contends that in consequence, he is entitled to a reduction in his sentence.
96. [96]
    Reliance is placed on the Court of Appeal decision of R v Lyon^[49] in support of this contention.  While an earlier offer may be a relevant matter to be taken into account in the exercise of the sentencing discretion, it is subject to the express comments at [28] of the reasons of Jerrard JA (with whom Douglas J agreed).  Namely:

“Accepting that proposition as both sensible and authoritative, the benefit from such offers in any particular case depends upon the extent to which the person convicted co-operates with the administration of justice during the trial, or offers to, or demonstrates remorse…”

97. [97]
    In R v Lyon, earlier written offers provided a basis for a reduction in the sentence, being a preparedness to cooperate with the administration of justice and justification for a plea of not guilty.  This had not been taken into account by the sentencing judge in that case.  On resentencing, Jerrard JA and Fryberg J agreed that a serious violent offence declaration was justified but that if the defendant had pleaded guilty to those counts, he would have been eligible for parole after three years (being less than the 80 per cent of 7 years).  It seems apparent from this that while the offer was relevant, it was balanced alongside how the trial was conducted.
98. [98]
    Here, given the way the trial was conducted and the positive case that was run which was not accepted by the jury, little weight should be given to the applicant’s offer.  This was not a case where an offer was made and the trial was conducted consistently with that offer, even though a formal guilty plea to the alternative count was not made at the commencement of the trial.
99. [99]
    The applicant also submits that the comparable cases relied upon by the respondent did not suggest that a sentence “well and truly above”^[50] the seven years sought by the respondent was justified.  Further, the applicant submits that even if the sentence imposed was within the permissible range for this offending, it results in a manifestly excessive disparity between the sentences imposed on Mr Sadowski and the applicant, which gives rise to a justifiable sense of grievance.
100. [100]
     The respondent contends that the disparity in the sentences is explicable due to the distinguishing features of Mr Sadowski previously outlined.  In contrast, the features of the applicant’s offending included that:

     1. he was not acting under the influence of alcohol;
     2. he did not know the complainant and had no grievance with him;
     3. he encouraged and facilitated Mr Sadowski’s desire to “sort out” the complainant by driving to the offence location; and
     4. he wore a face covering, at least for part of the offending.
101. [101]
     The respondent also points to the following circumstances of the offending:

     1. the applicant was armed with a knife and inflicted at least one wound on the complainant making him more vulnerable;
     2. he damaged the complainant’s tyres thus frustrating any avenues of escape;
     3. he assaulted the complainant once he was vulnerable and prone and then pursued him inside the house and continued to assault him, in the knowledge that the complainant was seriously injured;
     4. it was not until another person intervened that he desisted with the assault on the complainant;
     5. the grievous bodily harm inflicted on the complainant was such that he nearly died and would have done so without medical intervention.
     6. the applicant impliedly threatened the witnesses, yelling out “no names” as he and Mr Sadowski fled the scene.
     7. the knives were disposed of; and
     8. the applicant showed no remorse the following day when he lied to the police about his whereabouts and how Mr Sadowski had received the injury to his finger.
102. [102]
     Further, the respondent submits that given the applicant’s criminal history and antecedents the sentencing judge was correct to conclude that his prospects of rehabilitation were “quite limited”.
103. [103]
     The respondent also contends that the sentencing judge considered the relevant authorities in respect to making the serious violent offence declaration.  The sentencing judge also reduced the sentence that otherwise would have been appropriate to account for the declaration.^[51]
104. [104]
     The comparative authorities referred to by the sentencing judge are R v Bryan; ex parte Attorney-General (Qld) [2003] QCA 18 and R v Noltenius [2014] QCA 303.  The sentences imposed in those cases was six years and no serious violent offence declaration^[52] and seven years with a serious violent offence declaration, respectively.  The respondent relied upon these authorities as supporting its submission for a sentence of no less than 7 years with a serious violent offence declaration.
105. [105]
     In R v Bryan; ex parte Attorney-General (Qld), the Court of Appeal allowed the appeal and increased the sentence from four years imprisonment, suspended after 12 months with an operation period of five years, to six years imprisonment.  Williams JA, with whom de Jersey CJ and Cullinane J agreed, observed that:

“It is difficult, if not impossible, when dealing with the offence of grievous bodily harm to speak meaningfully of a ‘range’ when considering penalty.  A great variety of acts may result in the commission of that offence… Also the nature of the injuries sustained and the permanent consequences thereof may vary greatly.  All of those factors will have some impact in determining the appropriate sentence.”^[53]

106. [106]
     In considering the appropriate sentence in that case, the Court of Appeal considered the need to protect the community where the offending was an unprovoked, vicious and cowardly attack upon an innocent passer-by in a public street and involved a knife such as to seriously threaten life.  Williams JA concluded that a sentence in the range of six to seven years was the minimum that could be considered for the head sentence.  The only mitigating feature was the plea of guilty.  The other relevant circumstances were an overwhelming Crown case, no real remorse shown and only some indications of rehabilitation.
107. [107]
     In R v Noltenius, the Court of Appeal refused leave to appeal a sentence of seven years imprisonment with a serious violent offence declaration.  The issues on appeal were whether there was an error in exercising the discretion to make a serious violent offence declaration and whether the sentence was manifestly excessive in all of the circumstances.  The case involved using a knife to stab an unsuspecting complainant in the neck, from behind, in a surprise attack.
108. [108]
     Fraser JA, with whom Muir JA and Peter Lyons J agreed, held that the making of the serious violent offence declaration was open and that the sentence, including the declaration, was not manifestly excessive, as demonstrated by the comparable authorities.
109. [109]
     The imposition of the serious violent offence declaration in respect of the applicant’s grievous bodily harm offending would be within range if parity considerations were not present.  It is the interplay between the operation of the declaration and parity which gives rise to the concerns that the sentence is manifestly excessive in all of the circumstances.  The operation of the declaration in effect amplifies the disparity between the sentences imposed on the applicant and Mr Sadowski.
110. [110]
     If the applicant was being sentenced alone then the sentence imposed in respect of the grievous bodily harm would have been within range and the serious violent offence declaration justified.  However, given the sentence imposed on the co-offender for more serious offending in Count 2, the “instinctive synthesis” includes due weight being given to parity.
111. [111]
     In the re-exercise of the sentencing discretion the sentence imposed on the applicant needs to be varied to avoid the sentence being manifestly excessive as a result of the disparity between the sentences imposed on the applicant and Mr Sadowski.  Giving due weight to the parity principle, the sentence of seven and a half years with a serious violent offence declaration is not justified, particularly taking into account his conviction of a less serious offence and his lesser role in the offending in comparison to Mr Sadowski.  While the offer to plead guilty to the alternative offence is a relevant factor, little weight is to be given to it in reaching this conclusion as a result of the way that the trial was run.
112. [112]
     The sentence in respect of the grievous bodily harm should be varied to seven years with no declaration of a serious violent offence and no order for early parole.
113. [113]
     Accordingly, the order should be:

1. Leave to appeal against sentence is granted.
2. Appeal allowed.
3. The sentence on Count 6^[54] (grievous bodily harm) be varied to seven years imprisonment with no declaration of a serious violent offence.
4. The sentence is otherwise confirmed.