R v DCO[2025] QCA 110

SUPREME COURT OF QUEENSLAND

1. [1]
   BOND JA:  I agree with the reasons for judgment of Boddice JA and with the order proposed by his Honour.

1. [1]
   BODDICE JA:  On 16 October 2023, the applicant pleaded not guilty to one count of burglary by breaking in the night (count 1), one count of assault occasioning bodily harm while armed (count 2) and one count of grievous bodily harm (count 3).  The latter offence was a domestic violence offence.
2. [2]
   On 18 October 2023, a jury found the applicant guilty on each count.
3. [3]
   On 19 October 2023, the applicant was sentenced to imprisonment for 5 years on count 1, imprisonment for 3 years and 6 months on count 2 and imprisonment for 5 years on count 3.  He was also sentenced to imprisonment for 4 months on a count of serious assault, to which he pleaded guilty on 19 October 2023.
4. [4]
   The sentences for counts 1 and 2 were ordered to be served concurrently.  The sentence for count 3 was ordered to be served cumulatively on those sentences.  The sentence of imprisonment for serious assault was ordered to be served cumulatively on all other terms.
5. [5]
   It was declared that the 422 days spent in pre-sentence custody be deemed time already served under the sentence.  It was further declared that the conviction of the offences of assault occasioning bodily harm while armed and grievous bodily harm, were convictions of serious violent offences.  The consequence of that declaration was that the applicant was required to serve 80 per cent of those sentences, prior to being eligible for release on parole.
6. [6]
   The applicant seeks leave to appeal sentence.  Should leave be granted, the applicant relies upon one ground; that the sentence imposed was manifestly excessive.^[1]

Background

7. [7]
   Counts 1, 2 and 3 were all committed on 22 August 2022.  Each was contained on one indictment.
8. [8]
   The offence of serious assault was committed on 23 August 2022.  It was contained on a separate indictment.
9. [9]
   At the time of the commission of the offences, the applicant was 42 years of age.  He was 43 years of age at the date of sentence.
10. [10]
    The applicant had a relevant criminal history.  It contained numerous entries for property, drug and violent offending.  The applicant had previously been sentenced to imprisonment for manslaughter and grievous bodily harm with intent.  Both offences attracted a serious violent offence declaration.

Offences

11. [11]
    Counts 1 and 2 were committed in the early hours of 22 August 2023, somewhere between midnight and about 1.00 am.  The applicant was wearing dark clothes, including a dark hoodie and a mask, when he gained entry to the house of the complainant by breaking open a door which was locked (count 1).  The applicant was carrying a machete.  As soon as the applicant opened the door, he attacked the male complainant by swinging the blade of the machete at the top of the complainant’s head.  The blow caused a laceration and possible damage to his skull (count 2).  The attack only stopped because, notwithstanding his injuries, the complainant managed to push the door shut against the applicant, leading him to leave the premises.
12. [12]
    Count 3 was committed on the evening of 22 August 2023.  The applicant had an argument with his step-father, with whom he was staying.  The applicant kicked the step-father very hard to his right leg, fracturing both bones in that leg (count 3).  When the step-father fell to the ground, the applicant continued to assault him before leaving the premises.
13. [13]
    Police eventually located the applicant at other premises in the early hours of 23 August 2022.  When police approached the applicant, he threw a glass in the direction of police, striking one of them on his right finger causing bruising and swelling.  This act constituted the offence of serious assault.

Sentence hearing

14. [14]
    The Crown submitted that the applicant’s offending in respect of counts 1 and 2 involved premeditated conduct.  Violence was used in the presence of children.  That violence had significant impacts on the complainant.
15. [15]
    The Crown submitted that the offending, the subject of count 3, was unprovoked and committed in the context of a domestic relationship.  There was a physical imbalance between the complainant and the applicant.  The applicant continued to assault the complainant when the complainant was on the ground and left the complainant without rendering assistance.  The complainant had ongoing consequences which had significantly reduced his quality of life.
16. [16]
    The Crown submitted that a notional global head sentence of 11 years 6 months’ imprisonment was an appropriate sentence.  Declarations were sought in respect of counts 2 and 3 being convictions of a serious violent offence.
17. [17]
    Defence counsel accepted that a serious violent offence declaration was open in respect of each of those counts, but submitted that such a declaration not be made in the circumstances, as those offences were not more serious than the usual nature for such offences.  Further, considerations of totality required an amelioration of the head sentence if the sentencing judge was to make a serious violence offence declaration, as sought by the Crown.

Sentencing remarks

18. [18]
    The sentencing judge observed that all of the offences occurred over one day.
19. [19]
    The sentencing judge recorded that the offences had caused considerable harm.  The fracture to the head of the first complainant had left him with a permanent dent to the top of his head.  That complainant experienced considerable fear, including a fear of being alone and of noises at night.  He had ongoing medical, psychiatric and psychological treatment.  The complainant’s partner and three children who were in the house, also found it traumatic, requiring them to obtain counselling as well.
20. [20]
    The sentencing judge recorded that the applicant’s step-father used to be relatively healthy and independent, but since the attack he had suffered ongoing pain and found he was no longer able to be independent.  He had considerable psychological problems as a consequence of his injuries.
21. [21]
    The sentencing judge recorded that the applicant had a long criminal history, which began in 1998 with drug offences.  That history was littered with offences over many pages and many years, including drug offences, offences of violence, including domestic violence, breaches of domestic violence orders, burglaries and associated violence and even violence whilst in custody.  The most serious offences in his history were convictions for grievous bodily harm with intent and manslaughter in 2007.
22. [22]
    The sentencing judge recorded that the offences for which the applicant was to be sentenced, were committed only about one month after his last release from custody.
23. [23]
    The sentencing judge found that the offences for which the applicant was being sentenced involved serious violence to property and citizens.  The offences of violence were unprovoked and, in relation to the male complainant, committed on a defenceless victim with a very dangerous weapon and, in relation to his step-father, against a complainant who was callously left by the applicant, despite broken bones in his lower leg.  That offence was also a domestic violence offence.
24. [24]
    The sentencing judge recorded that the Crown submitted for an overall head sentence of 11 years and 6 months’ imprisonment, with serious violent offence declarations being made in respect of the offences of assault occasioning bodily harm whilst armed and grievous bodily harm.  The sentencing judge found that given that count 3 and the serious assault offence were committed at different times and involved different occasions of violence to count 2, it was appropriate that those offences be the subject of cumulative sentences.
25. [25]
    The sentencing judge found that having regard to the applicant’s relevant and serious criminal history, including previous offences that were declared as serious violent offences, and the total aggravating features of the offending, understanding that at least the assault occasioning bodily harm whilst armed was premeditated and that the grievous bodily harm was completely unprovoked and involved showing callous disregard for his step-father, those two offences merited a declaration that each was a conviction for a serious violent offence.
26. [26]
    The sentencing judge noted that the applicant had shown no remorse whatsoever, apart from a guilty plea to the serious assault.  The applicant also had a long and violent history of criminal offences.
27. [27]
    Considering all of the circumstances, the sentencing judge found that count 1 merited a sentence of 6 years’ imprisonment; count 2 merited a sentence of no less than  3 years and 6 months’ imprisonment; and count 3 warranted a sentence in the order of 5 years’ imprisonment.  The serious assault merited 12 months’ imprisonment.
28. [28]
    Allowing for totality and the plea of guilty to serious assault, the sentencing judge reduced the sentence on count 1 to 5 years’ imprisonment and reduced sentence on serious assault to 4 months’ imprisonment.

Consideration

29. [29]
    To succeed on a ground of manifest excess, the applicant must establish more than that the sentence is different or markedly different to comparable yardsticks.  The sentence must be shown to be of such a nature as to evidence misapplication of principle, or warrant a conclusion that it is unreasonable or plainly unjust.^[2]
30. [30]
    The applicant submits that the sentence imposed for count 3 was manifestly excessive.  A sentence of 5 years’ imprisonment was unreasonable and plainly unjust.  No weapon was used and the injuries were not life threatening.  Further, the head sentence for that count had to be ameliorated to take into account that it was to be served cumulatively and that the applicant would be required to serve 80 per cent of the sentence as a consequence of the declaration that it was a conviction of a serious violent offence.
31. [31]
    The applicant further submits that whilst the sentencing judge ameliorated the sentences on count 1 and serious assault to reflect that they were to be served cumulatively, the reduction was insufficient to reflect principles of totality.  The overall sentence structure required the applicant to serve 80 per cent of the total period of imprisonment imposed on the remaining counts, which were the subject of a declaration of a serious violent offence.
32. [32]
    Whilst the overall totality of the sentences imposed was significant, a consideration of the applicant’s offending and his personal circumstances, supports a conclusion that the sentences imposed were not manifestly excessive.  They fell within a sound exercise of the sentencing discretion.
33. [33]
    First, the applicant’s criminality on 22 August 2022 included two entirely separate incidents of gratuitous violence, with lifelong effects on each victim.  Those circumstances amply warranted a conclusion that the sentences for those offences ought to be served cumulatively.  Similar consideration warrants an order that the sentence for serious assault also be served cumulatively.
34. [34]
    Second, the applicant’s criminality was engaged in weeks after his most recent release from custody.  That circumstance, in the context of the applicant having previously served substantial periods of imprisonment for offences of violence, meant that denunciation and deterrence, both general and personal, loomed large.
35. [35]
    Third, the applicant exhibited no remorse and he had limited cooperation with the administration of justice, namely a plea of guilty to serious assault.
36. [36]
    Fourth, the criminality associated with the applicant’s conduct in the commission of counts 2 and 3 was of a nature warranting the declaration of convictions of serious violence offences.  Both offences involved not only the infliction of gratuitous violence.  In the case of the former, a machete was used to attack the occupant of the home, the applicant had entered in the nighttime.  In the case of the latter, the attack on his step-father had the aggravating feature that it was a domestic violence offence.  Both attacks continued notwithstanding obvious injuries to each victim.
37. [37]
    Fifth, the sentences for the offences of counts 2 and 3 were not inconsistent with comparable yardsticks.^[3]
38. [38]
    Having regard to all of those factors, the sentences imposed by the sentencing judge evidenced a proper consideration of totality principles and of the consequence of a declaration of the commission of serious violent offences.  The moderation of the sentences on count 1 and serious assault gave due regard to those principles.

Conclusion

39. [39]
    The sentences imposed do not evidence any misapplication of principle.  They were neither unreasonable nor plainly unjust.
40. [40]
    The sentences imposed were not manifestly excessive.

Orders

41. [41]
    I would order:

1. Leave to appeal sentence be refused.

42. [42]
    SULLIVAN J:  I agree with Boddice JA’s reasons and with the order proposed by his Honour.