R v Buggy[2024] QCA 80

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Cooper J and with his reasons.
2. [2]
   FLANAGAN JA:  I agree with Cooper J.

3. [3]
   COOPER J:  The applicant pleaded guilty on 10 July 2023 to one count of malicious act with intent to do grievous bodily harm.  He was sentenced to imprisonment for seven years.  A period of 658 days of pre-sentence custody was declared to be time already served under the sentence.  A declaration was also made that the applicant had been convicted of a serious violent offence, with the result that he will not be eligible for parole until he has served 80 per cent of the sentence.^[1]
4. [4]
   The applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive.  In advancing that ground, the applicant accepts that it was open to the sentencing judge to impose a head sentence of seven years’ imprisonment.  Separately, he accepts that in the circumstances of this case it was open to the sentencing judge to make a serious violence offence declaration.  The essence of the applicant’s complaint is that the combined effect of those two decisions makes the sentence manifestly excessive.  If a head sentence of seven years was to be imposed, no serious violent offence declaration should have been made and no parole eligibility date should have been fixed, leaving the applicant eligible for parole after serving half the period of imprisonment.^[2]  If a serious violent offence declaration was to be made, the head sentence should have been no longer than six years.

Circumstances of the offending

5. [5]
   The sentencing proceeded on an agreed statement of facts.  The complainant and his family (his wife, 17-year-old son, 15-year-old daughter and 9-year-old daughter) had known the applicant and his family for about six years.
6. [6]
   In the week before the offending, the complainant’s wife thought she saw the applicant’s wife at a local shopping centre and formed the view that she looked pregnant.  After the complainant’s wife had mentioned this to the complainant in passing, the complainant raised the subject with the applicant when the two were at their local gym the day before the offending.  He asked whether the applicant’s wife was pregnant.  The applicant responded in the negative and asked who had said this to the complainant.  The complainant explained that his wife had seen the applicant’s wife and thought she looked pregnant.  The applicant told the complainant that his wife had moved to Penrith, indicating that the couple had separated.  The complainant was not aware of this when he raised the subject of the applicant’s wife.
7. [7]
   The following day, 18 September 2021, the complainant was building a cubby house in the front yard of his home with the assistance of two friends.  The complainant’s wife was not home, but his children were in the house.
8. [8]
   At about 3.30 pm, the complainant received a phone call from the applicant, asking who had told the complainant that the applicant’s wife was pregnant.  The complainant repeated what he had said the previous day: that it was the complainant’s wife.  The applicant did not accept this.  He asked whether it was the complainant who had said it and whether the complainant was criticising his wife’s appearance.  The complainant ended the call.
9. [9]
   The applicant called back and yelled abuse at the complainant.  He said that he would “smash” the complainant and told the complainant to come to his house to sort it out.  The complainant ended the call again.
10. [10]
    After the second phone call, the applicant commenced an exchange of text messages with the complainant in which each of the men insulted the other.  The applicant repeated his challenge to the complainant to come to the applicant’s house.  The complainant indicated he would do so the next day.  Apparently unsatisfied with this response, the applicant told the complainant that he would come to the complainant’s house.  The complainant confirmed that he was at his house if the applicant wanted to come there.  After further insults were exchanged, the complainant told the applicant that it turned out the woman the complainant’s wife had seen was not the applicant’s wife, so the issue was not worth carrying on about the way the applicant was.  The complainant said that if the applicant still wished to fight then he was fine with that but that the applicant should have a good think about whether it was worth it.  He suggested that the applicant should settle down.  That did not end the exchange.  Eventually, the complainant repeated that he would meet the applicant the following day if that was what the applicant wanted but suggested that the applicant should “sleep it off”.
11. [11]
    The applicant did not heed that advice.  About half an hour later he drove to the complainant’s house in the company of his two sons (aged 23 and 19) and two of his sons’ friends (aged 22 and 19).  The applicant approached the house and yelled for the complainant to come out.  The complainant ran from the back yard to the front of the house.  On the way, he grabbed a pair of plastic knuckle dusters.
12. [12]
    The applicant, both his sons and the older of the sons’ friends entered the front yard.  The younger of the sons’ friends stood at the gateway to the yard.  The applicant had a kitchen knife with a blade of approximately 15 cm in his pocket.  Two others in the group were also armed.  The applicant’s 23-year-old son was carrying a sword in one hand and a machete in the other.  The older of the sons’ friends was wearing metal knuckle dusters.
13. [13]
    When the applicant saw the complainant start to put on the plastic knuckle dusters, he called the complainant a coward.  The complainant then threw the knuckle dusters away.  At that stage, he had not seen the weapons brought by the applicant’s group.
14. [14]
    The applicant threw a punch at the complainant’s head which the complainant was able to evade.  The applicant then chased the complainant around the yard and both men threw punches at each other.  The applicant’s younger son and the older of the sons’ friends joined the fight.
15. [15]
    The applicant pulled out the knife he had brought with him and stabbed the complainant twice to the left side of the chest.  The complainant was struck on the head by one of the offenders and fell to the ground.  The complainant’s 15-year-old daughter attempted to get the applicant off her father, but someone grabbed her by the hair and threw her off him and onto the ground.  The applicant stabbed the complainant a third time, just below the nipple on the right side of his chest, while he was on the ground.
16. [16]
    One of the men who had earlier been assisting the complainant to build the cubby house picked up a hammer and threw it towards the applicant, striking him on the upper thigh and causing him to fall to the ground.  One of the other offenders helped the applicant to his feet and back to the applicant’s car.
17. [17]
    The complainant was treated at Gympie Hospital for two stab wounds to the lower left anterior thorax, one stab wound to the right lower anterior thorax, and one stab wound to the back of his scalp.^[3]  He underwent a blood transfusion because of blood loss, before being transferred to the Royal Brisbane and Women’s Hospital in Brisbane for surgery.  He underwent an exploratory laparotomy to ensure that he did not suffer any other injuries to internal organs and a mini thoracotomy to tie up a subcostal artery.  The treating doctor stated that, without this treatment, the complainant might have died due to blood loss.  The procedures might also leave the complainant with future complications such as abdominal adhesions, infections or herniations.  The significant ongoing impact of the attack on the complainant and his family were set out in victim impact statements prepared by the complainant and his wife.
18. [18]
    The statement of facts also referred to telephone conversations between the applicant and his wife in the fortnight after the offending, while the applicant was remanded in custody.  The Crown contended that those conversations were attempts by the applicant to have his wife retrieve weapons hidden at a neighbour’s house in an effort to conceal evidence.
19. [19]
    The sentence proceeded on the basis that the applicant’s intent when he arrived at the complainant’s house was to confront the complainant.  Prior to the altercation, the applicant had contemplated using the knife.  However, the applicant only formed an intent to cause grievous bodily harm during the altercation with the complainant.

The applicant’s antecedents

20. [20]
    The applicant was 45 years old at the time of the offence and 47 years old when he was sentenced.  He had a relevant but dated criminal history.  In 2001 he was convicted in the Bundaberg Magistrates Court for assault occasioning bodily harm, for which he received a fine with no conviction being recorded.  That offence involved the applicant engaging in an altercation without provocation.  He elbowed the victim in the mouth, headbutted him in the forehead and punched his jaw.  The victim was knocked unconscious and sustained cuts, bruises and a fractured ankle.  In 2007, the applicant was convicted in the Southport Magistrates Court of committing public nuisance for which he was fined.  On that occasion the applicant attended a neighbour’s address while intoxicated and engaged in a physical altercation which continued to the roadside at the front of the property.  In 2010, the applicant was convicted in the Southport Magistrates Court for committing a public nuisance and obstructing a police officer.  He attempted to fight security after being evicted from a night club.  When police intervened, he struggled with them.  Eventually the police used OC spray to restrain him.  Finally, in 2012 the applicant was convicted in the Gympie District Court of producing 1.4 kg of cannabis.  He was sentenced to probation for two years with no conviction recorded.
21. [21]
    References tendered on the applicant’s behalf at the sentencing hearing described him as a dedicated father.  He has seven biological children and two stepchildren.  He completed grade 10 before leaving school and commencing work as a tiler with his father.  He undertook that trade for 20 years and was described as having a strong work ethic and history.
22. [22]
    The applicant’s substance use was addressed in a psychologist’s report tendered on his behalf at the sentencing hearing.  The applicant reported that he enjoyed consuming alcohol but denied that he had problems managing his use of alcohol.  He acknowledged that his past offending had occurred when he was intoxicated by alcohol.  The applicant smoked cannabis daily for many years until he ceased after his arrest in 2012.  He then used MDMA, amphetamines and cocaine on a recreational basis.  On the day of the offending, he attended the local races with his sons where he consumed alcohol throughout the afternoon and took several MDMA pills.
23. [23]
    The psychologist’s report referred to the applicant’s history of drug and alcohol-related offences, his difficulties managing anger, frustration and impulsivity, and the exacerbation of these difficulties when he is adversely affected by alcohol or drugs.  It noted that the offending occurred in the context of alcohol and drug intoxication and at a time when the applicant was experiencing the impact of various life stressors, including his wife moving to live in Penrith.  The report concluded that if the applicant did not address his misuse of alcohol and drugs then his risk of reoffending is moderate, but that engagement in treatment would lower this risk.
24. [24]
    While in custody on remand, the applicant completed a low-intensity drug and alcohol rehabilitation course as well as several occupational qualifications.

Submissions and sentencing remarks

25. [25]
    At the sentencing hearing the Crown submitted that the appropriate sentence would be in the range of seven to nine years’ imprisonment, with a serious violent offence declaration.
26. [26]
    Defence counsel at the sentencing hearing contended that a sentence in the range of six to seven years’ imprisonment would be appropriate.  It was submitted that it would not be appropriate to make a serious violent offence declaration, but it was accepted that the parole eligibility date might be fixed somewhere between one-third and one-half of the head sentence.
27. [27]
    The sentencing judge accepted that the applicant’s guilty plea, along with other matters, indicated his remorse.  His Honour then set out the circumstances of the offending, the applicant’s antecedents and the competing submissions.  It was not considered necessary to go through the cases which had been cited in support of those competing submissions in any detail.  His Honour concluded that the appropriate range for the head sentence was between seven and eight years’ imprisonment.
28. [28]
    The real issue was that of parole.  The sentencing judge identified the need, before a serious violent offence declaration could be made, to consider what it was about this case that might warrant a delay in the applicant’s release on parole until he had served 80 per cent of his sentence.  His Honour described the applicant’s conduct as an extremely serious example of offending having regard to: the degree of violence he used; the fact that he was in company with others with weapons, having co-opted them into the enterprise; the brazen nature of the attack in the complainant’s front yard and in the presence of his children; that the attack was unjustified; that the applicant held the intention to cause grievous bodily harm; that, although it did not seem that the complainant suffered any permanent injury to his health, the attack would have killed him but for the timely medical treatment he received; the very significant and ongoing effect the attack had upon the complainant and his family; the absence of any real cooperation; and the fact that the applicant was not a young man or a first-time offender.  The applicant’s voluntary use of alcohol and drugs did not diminish his responsibility.  As to the reason the applicant engaged in the attack, the sentencing judge stated:^[4]

“Nor do I accept that there was any kind of provocation or excuse in the conduct of the complainant that reduces your responsibility for your actions.  What the complainant said – inquiring whether your wife was pregnant – was so innocuous, no one could even begin to justify reacting in the way that you did.  So while this was not random violence – there was a reason why you did what you did – it was, in the sense that the law uses these terms, both unprovoked, gratuitous and unnecessary.”

The serious violent offence discretion

29. [29]
    In R v Free; Ex parte Attorney-General (Qld),^[5] this Court confirmed that the exercise of the discretion whether to make a serious violent offence declaration is something which is required to be undertaken as part of the integrated process of arriving at a just sentence, not separately from it.^[6]  Where a case calls for consideration of whether to exercise the discretion to make a serious violent offence declaration, the sentencing court is required, as part of the integrated process, to consider all relevant circumstances to determine whether there are circumstances which aggravate the offence in a way which suggests the protection of the public or adequate punishment require a longer period in actual custody before eligibility for parole than would otherwise be required.^[7]
30. [30]
    As already observed, the applicant accepts that it was open to the sentencing judge to make a serious violent offence declaration in this case.  His argument on this application rests upon one of a number of observations which the Court identified in R v McDougall and Collas^[8] as being of potential assistance to sentencing courts where the discretion whether to make a serious violent offence declaration falls to exercised.  Those observations were cited with approval by the Court again in Free.^[9]  The relevant observation upon which the applicant relies was as follows:

“… where a discretionary declaration is made, the critical question will be whether the sentence with that declaration is manifestly excessive in the circumstances; accordingly the just sentence which is the result of a balancing exercise may well require that the sentence imposed for that declared serious violent offence be toward the lower end of the otherwise available range of sentences.”

Implied error in the assessment of the context of the offending

31. [31]
    The applicant submits it can be implied, from the passage from the sentencing remarks extracted at [28] above, that the sentencing judge erred by approaching the sentence on the basis that the offending conduct was a direct reaction to an innocuous statement about the applicant’s wife.  He argues that this assessment loses sight of the true nature of the text messages between the applicant and the complainant; the complainant’s willingness to participate in the fight with the applicant; and the factual basis for the plea that the intent to cause grievous bodily harm was formed during that fight.  The applicant submits that this full context demonstrates that the offending occurred during a consensual fight which was foreseen and encouraged by the complainant, not simply as a reaction to a perceived slight.
32. [32]
    This characterisation of the context of the offending ignores that the fight was the consequence of the applicant’s reaction to the perceived slight.  In the applicant’s description of the offending to the psychologist, he said that he had formed the view that the complainant had been “talking shit” about his wife and he was angry about this.  He accepted that he asked the complainant to “sort it out”, meaning possibly have a physical fight.  He said that he had been ruminating about the complainant’s comment and, when he started communicating with the complainant on the phone and then by text message, he overreacted.  He said that he was not thinking straight when he went to the complainant’s house.  He was “pissed off” and wanted to stand up for his wife.  He told the psychologist that he regretted the offending because it was an overreaction.^[10]  To similar effect, in his letter of apology, the applicant stated:^[11]

“If I could have my time over again I would not have reacted in the way that I did over what I perceived to be a slight, and without a doubt avoid all conflict as the hurt it brings to all weighs heavy on my conscious [sic].  Violence is never the answer.”

33. [33]
    Relying upon that material, the written submissions of defence counsel at the sentencing hearing stated:^[12]

“It is obviously not an excuse for the offending but Mr Buggy reacted to what he perceived as a slight directed by the complainant to his then partner.  It was a brutal and misconceived over-reaction.”

34. [34]
    The written submissions went on to refer to there being “an element (albeit utterly erroneous) of provocation” for the applicant’s conduct.^[13]  During oral submissions, defence counsel at the sentencing hearing clarified that the reference to “provocation” was not intended to suggest that the complainant had acted in any way which justified or excused the applicant’s offending.^[14]  The word was simply used to describe what was exercising the applicant’s mind at the time of the offending.
35. [35]
    The sentencing judge had a proper appreciation of the context of the offending.  In reciting of the facts of the offending, his Honour described the applicant taking the complainant’s question about his wife as a slight and ruminating over it; the aggressive nature of the conversation when the applicant called the complainant the next day, including the applicant’s threat to smash the complainant; the exchange of text messages in which both men insulted each other and in which there was an agreement for there to be a confrontation the following day; the applicant gathering the other offenders and going to the complainant’s house with a plan to assault him; the applicant taking a knife with him to the complainant’s house; the complainant coming out with a set of plastic knuckle dusters when the applicant arrived, but discarding them when he was challenged by the applicant; the development of a scuffle when the applicant tried to punch the complainant; the applicant’s production of the knife during the scuffle and his stabbing of the complainant, initially twice in the chest and then a third time in the chest while the complainant was on the ground.
36. [36]
    In the passage which the applicant criticises in this application, the sentencing judge addressed the explanation proffered as to why the applicant acted as he did.  The statement was entirely consistent with the submissions made to the sentencing judge by defence counsel.  Moreover, the sentencing judge’s characterisation of the applicant’s conduct as “unprovoked, gratuitous and unnecessary” was plainly correct.  Although prepared to fight the applicant if he could not be talked out of it, the complainant made some attempt during the exchange of text messages to encourage the applicant to think twice about what he was proposing.  The complainant did not instigate the fight.  It was the applicant’s choice to go to the complainant’s house armed, in the company of the other offenders, which resulted in the offending.
37. [37]
    The sentencing remarks do not support the submission that the sentencing judge approached the matter on the basis that the offending was a direct response to the complainant’s statement about the applicant’s wife, rather than by reference to the full context of the interactions between the applicant and the complainant.

Manifest excess

38. [38]
    The applicant submits that the commission of the offending in the context of a consensual fight, together with the lack of long-term injury to the complainant and the applicant’s early plea of guilty justified a sentencing range beginning at six years’ imprisonment.  That contention is based on the decisions in R v Whittaker,^[15] R v Edwards,^[16] R v Piper,^[17] R v Akol^[18] and R v Kuhn.^[19]
39. [39]
    The Crown relies on two further decisions which are referred to in Edwards: R v Bryan; Ex parte Attorney-General (Qld)^[20] and R v Thomason; Ex parte Attorney-General (Qld).^[21]
40. [40]
    Where manifest excess is raised, the question is not whether the impugned sentence was severe, or whether a more lenient sentence may have been imposed.^[22]  To succeed on such an application it is not enough to establish that the sentence imposed was different, or even markedly different, from sentences that have been imposed in other cases.^[23]  In this context, error justifying appellate intervention will only be established if, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the Court is driven to conclude that there must have been some misapplication of principle,^[24] or that the sentence is “unreasonable and plainly unjust”.^[25]
41. [41]
    What the applicant refers to as “the range” has been described as no more than information about sentences that have been imposed in comparable (but not identical) cases, expressed in terms of the order of the sentence that, subject to discretionary considerations that arise in the case at hand, might be expected to be imposed on a certain type of offender who commits a certain type of crime.  It is the historical fact that there has been a general pattern of sentencing over a particular period.^[26]  While past decisions in other cases may assist in understanding how the various relevant factors should be treated in deciding the sentence in a subsequent case, they are not determinative of that sentence and they do not set a range of permissible sentences.^[27]  The history of past sentences stands as a yardstick against which to examine a sentence for the purpose of achieving broad consistency in the sentencing of offenders in broadly comparable cases.^[28]  The analysis of comparable cases for this purpose should not include an attempt to grade the criminality involved in different cases by a close comparison of aggravating and mitigating factors.  To adopt such approach, as if there is only one correct sentence, is to be deprecated as involving the illusion of a degree of precision which is both unattainable and, in truth, alien to the sentencing process.^[29]
42. [42]
    With those principles in mind, I turn to consider the comparable decisions identified by the parties.
43. [43]
    In Whittaker,^[30] the applicant pleaded guilty to one count of malicious act with intent to do grievous bodily harm.  The offending occurred after the applicant and his brother had been ejected from a nightclub at about midnight.  After their ejection, the applicant was verbally abusive to security staff at the club.  The complainant, a member of the security staff, heard the applicant say “We’re coming back to get you”.  When the complainant finished work at 3.00 am and was walking to his car, the applicant pulled a hood over his head to conceal his identity and followed.  He rushed up behind the complainant and stabbed him twice in the left upper side of his back with a sharp instrument.  When the complainant turned to face the applicant and identified him from the verbal altercation earlier in the night, the applicant ran from the scene.  The complainant was taken to hospital where he remained for two weeks.  His lung had collapsed and he required surgery.  He ultimately made a full recovery.  No victim impact statement was provided.
44. [44]
    The sentencing judge emphasised the seriousness of the offence and how fortunate it was that the complainant had not died.  General deterrence and denunciation were identified as important sentencing considerations where the applicant had armed himself with a knife and stabbed the complainant some hours after the initial incident which upset him.  The applicant was 21 years old at the time of the offending and had a minor criminal history.  His plea was entered at the committal proceedings which were by way of a full hand up, which showed a high degree of remorse.  The applicant had suffered an attack earlier in his life which left him with a very large scar down one side of his face and caused him to become broody and angry.  On the night of the offending, he had consumed alcohol, ecstasy and LSD and this affected his judgment.  The sentence of eight years’ imprisonment with a serious violent offence declaration was upheld.  It was described as a severe sentence, but the Court stated that the offence he committed was deserving of very significant punishment.
45. [45]
    In Edwards,^[31] the applicant pleaded guilty to one count of unlawful wounding with intent to do grievous bodily harm.  The offending occurred after the applicant and his friends had been ejected from a train for unruly behaviour on their return from a fishing trip.  The applicant was intoxicated.  As the group left the train, they formed the view that a young man at the station platform was laughing at them.  Their reaction to this perceived state of affairs caused the young man to ring some friends who had recently dropped him off at the station and ask them to return and keep him company while he waited for his train.  The applicant and his group concluded that the arrival of these others meant there would be a fight.  The applicant’s male companion broke a piece of branch from a tree and brandished it.  The applicant took a filleting knife from his fishing gear and followed his companion towards the other group.  It was said that he had felt obliged to support his companion.  There was some pushing and shoving and, during the altercation, the applicant used his filleting knife to stab one of the other men twice in the upper chest and neck.  He then threw the knife over a fence and returned to the platform from where he and his friends left on another train.  The complainant did not immediately realise that he had been stabbed and walked away with his friends.  One of the complainant’s wounds was superficial.  The more serious wound was an incision above the collar bone which had penetrated the chest wall and caused a 10 per cent pneumothorax.  The injury did not meet the definition of grievous bodily harm and was not likely to amount to a permanent injury to health.  No victim impact statement was tendered and there was no evidence of any longer-term effects of the wounding on the complainant.
46. [46]
    The sentencing judge noted that the applicant had shown no compassion to the complainant in the aftermath and, although eventually expressing remorse, had not shown any contrition when interviewed by the police.  The applicant was 26 years old at the time of the offending.  He had a relatively limited criminal history comprising eight offences, all resulting in fines.  Of most relevance were three offences of possessing a knife in a public place.  The sentencing judge noted the fact that the applicant was well spoken of by prison officers and that it appeared that he was heavily affected by alcohol on the day of the offence.  He appeared to have good prospects of rehabilitation.  However, the offence was a very serious one, occurring in a public place where there were other people in the vicinity.  It was unprovoked, and the applicant’s arming of himself with a knife and taking it into the fight were completely unnecessary.  On appeal the sentence of seven years’ imprisonment with a serious violent offence declaration was found to be manifestly excessive.  The head sentence was reduced to five and a half years.  The serious violent offence declaration was not disturbed.  An important feature which distinguished that case from the comparable authorities considered by the Court on that occasion (and from this case) is that the applicant initially had the knife in his possession for an innocent purpose.
47. [47]
    In Piper,^[32] the applicant’s plea of guilty to malicious act with intent was accepted in respect of an indictment that included an alternative count of attempted murder.  The applicant was separated from his wife.  His wife and a male friend were at a bar.  The applicant believed, mistakenly, that they were in a romantic relationship.  He entered the hotel and stabbed the man six times.  The complainant sustained a serious, life-threatening wound to the side of his neck.  He lost a significant quantity of blood and spent three or four days in intensive care.  While he recovered physically, he experienced continuing psychological difficulties.
48. [48]
    The sentencing judge noted the attack was premeditated and in breach of a domestic violence protection order.  The applicant’s plea was entered after a jury was empanelled for his trial.  To his credit, the applicant had desisted from the attack and thrown the knife away, but this only occurred when a bystander sought to intervene.  He cooperated with police as to his apprehension and the location of the weapon and was remorseful.  He had no criminal history, a good work history, performed well in custody and was suffering from depression at the time of sentence.  The head sentence of seven years’ imprisonment was upheld but the applicant was ordered to be eligible for release after serving two and a half years, rather than three years, to reflect his late plea of guilty and his remorse.
49. [49]
    In Akol,^[33] the applicant pleaded guilty to malicious act with intent.  A group of people were drinking together and, at some point, the complainant invited the group to continue drinking at his house.  The complainant informed the applicant that he did not wish for the applicant to join them because the applicant was too drunk.  The applicant attended anyway.  At the complainant’s house, there was a physical altercation between the applicant and another person.  The complainant then asked everybody to leave.  The applicant and several other people ignored that request.  The applicant then obtained a 30-centimetre-long knife from the complainant’s kitchen and attacked the complainant, stabbing him six times.  The complainant was admitted to the intensive care unit of the hospital and spent six weeks in hospital.  He suffered severe internal injuries which were life-threatening.
50. [50]
    The applicant had a relevant criminal history in three states, including convictions in Victoria for offences involving violence for which he was sentenced to terms of imprisonment.  While he was subject to a community corrections order made in Victoria, he committed offences in Queensland.  The sentencing judge considered a psychological report which suggested that, for reasons due to his upbringing and his history, the applicant was a person who was liable when stressed and overwhelmed to find comfort in alcohol.  The applicant expressed remorse for his actions and the sentencing judge accepted that his remorse was genuine.  A notional head sentence of nine years was reduced to eight years and nine months to take account of three months of incarceration which could not be declared as time served under the sentence.  A serious violent offence declaration was also made.  That sentence was not disturbed on appeal.
51. [51]
    In Kuhn,^[34] the appellant was found guilty of one count of malicious act with intent after a trial.  There was a verbal exchange, precipitated by the appellant, when he and his son drove past the complainant and his partner.  The appellant got out of his vehicle, punched the complainant in the head and threatened to kill him.  The complainant’s partner separated the two.  After the complainant and his partner returned home, the complainant collected a metal baseball bat and drove to a nearby house where the appellant was present and yelled out threats.  As the complainant was returning to his home, the appellant and his son drove at him in a vehicle, leaving the road and causing the complainant to jump out of its way.  After the vehicle stopped, the complainant went to the driver’s door, where the appellant was seated.  The complainant swung the baseball bat and struck the vehicle.  The appellant’s son got out of the vehicle and struck the complainant to the legs or back with a chain.  After he was struck, the complainant dropped the baseball bat and attempted to get away but fell over.  The appellant then used the baseball bat and his fists to beat the complainant while he was on the ground.  The complainant suffered serious injuries, including a left skull fracture with underlying brain laceration, a neck fracture, two rib fractures and significant bruising that, if left untreated, would have caused his death.  He was in a coma for nine days and had a lengthy period in the brain injury rehabilitation unit.  The complainant and his family suffered significant long-term consequences because of the attack and the complainant’s ongoing health issues.
52. [52]
    The appellant was 50 at the time of the offending.  He had a criminal history that included offences involving violence, but those entries were dated.  The sentencing judge accepted that he had turned his life around.  He had a good work history and was helping with the care of his 77-year-old father at the time of sentence.  The sentencing judge concluded that a serious violent offence declaration was warranted and, for that reason, reduced the sentence from what it would otherwise have been.  The sentence of imprisonment for seven and a half years, with a serious violent offence declaration, was not disturbed on appeal.
53. [53]
    The additional authorities which the Crown relies upon each involved an Attorney-General’s appeal against a sentence imposed for causing grievous bodily harm.  These decisions are not directly comparable with the present case because the maximum penalty for the offence of causing grievous bodily harm simpliciter is 14 years imprisonment,^[35] whereas offences involving an intent to do grievous bodily harm carry a maximum sentence of life imprisonment.^[36]  However, the Crown relies on those decisions as yardsticks which establish a sentence in the range of six years with a serious violent offence declaration as being appropriate for a less serious offence than the present case.
54. [54]
    In Bryan,^[37] the 21-year-old respondent, while in company with a group of other young men, abused and harassed the complainant and his girlfriend when they were walking towards the Queen Street Mall on their way home from a function in the early hours of New Year’s Day.  The respondent started a physical fight with the complainant, exchanging kicks and punches.  When the respondent began to lose the fight, he stabbed the complainant with a pocketknife.  He inflicted three wounds, including one to the complainant’s chest that was a very extensive and dangerous wound.  The complainant recovered but was left with areas of numbness in his left lower arm and back.  The respondent told his girlfriend what he had done and pressured her to give him a false alibi.  He made threats of harming anyone who gave evidence against him.  His girlfriend eventually told the police what she knew, and the respondent subsequently pleaded guilty to the offence.  It was put to the sentencing judge that he had been intoxicated by alcohol, cannabis and heroin.  He had no previous criminal history for violence, although he had minor convictions for property offences.  The respondent was found to have lacked any remorse.  Although there were some indications of rehabilitation, that was not a significant consideration.  The only mitigating factor was the plea of guilty.
55. [55]
    On appeal, the sentence of four years imprisonment suspended after 12 months was increased to imprisonment for six years.  The Court observed that a sentence in the range of six to seven years was the minimum which could be considered as the head sentence where the offending comprised an unprovoked, vicious and cowardly attack upon an innocent passer-by in a public street involving the use of a knife in such a way as to seriously threaten life.  Such circumstances would often justify the making of a serious violence offence declaration, but none had been asked for.
56. [56]
    In Thomason,^[38] the 18-year-old respondent stabbed the complainant from behind with a steak knife after the complainant failed to return the respondent’s “high five” gesture.  The complainant managed to fight the respondent off and disarm him.  The complainant suffered a wound to the neck and a far more serious wound to the heart which required surgery.  When he arrived at hospital, he had no pulse.  He was left with scarring from the stab wounds and the surgery.  There was some indication that scar tissue of the heart might cause future problems.  The respondent was identified from CCTV footage.  He was intoxicated at the time of the offence and disclaimed any knowledge of it.  After a full committal, he pleaded guilty a fortnight before his trial was due to commence.  He had two previous convictions which had attracted fines, but subsequent to his arrest had breached a community service order and, later, the sentence of imprisonment imposed in respect of that breach.  While on bail for the grievous bodily harm offence, he was also sentenced in respect of motor vehicle, wilful damage and domestic violence offences.
57. [57]
    On appeal, the sentence of imprisonment for four and a half years with parole eligibility after fourteen and a half months was increased to six years imprisonment with a serious violent offence declaration.  The Court endorsed the statement in Bryan that, in comparable circumstances, a range of six to seven years was the minimum to be considered as the head sentence and that a serious violent offence declaration could be made if sought.
58. [58]
    Having regard to the serious nature of the offending conduct in the present case, I am not persuaded that the degree to which the sentence imposed in this case differs from sentences that have been imposed in the comparable decisions discussed above compels the conclusion that there must have been some misapplication of principle by the sentencing judge or that the sentence is unreasonable and plainly unjust.  To the contrary, the range indicated in Bryan and Thomason for a less serious offence supports the sentence imposed in this case for an offence which involved intent to cause grievous bodily harm.
59. [59]
    It is accepted that, as part of the integrated sentencing process, a sentencing judge who exercises the discretion to make a serious violent offence declaration should moderate the head sentence that would otherwise be imposed to take account of the effect of the declaration.  Although the sentencing judge did not say so expressly in his remarks, that is the effect of his Honour’s decision to impose a head sentence of seven years’ imprisonment rather than eight years.
60. [60]
    What cannot be accepted is the proposition, implicit in the applicant’s argument, that a sentencing judge who exercises the discretion to make a serious violent offence declaration is obliged to precisely identify the lower end of an appropriate range of sentences and to impose the lowest head sentence within that range.  Such an approach would suggest a degree of precision in the sentencing process that is contrary to the principles referred to at [41] above.
61. [61]
    The sentence of seven years’ imprisonment with a serious violent offence declaration is not manifestly excessive.  It was warranted in the circumstances of this case.
62. [62]
    The application for leave to appeal against sentence should be dismissed.