R v Hardie[2025] QCA 24

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  I agree with the reasons of Gotterson AJA.
2. [2]
   BROWN JA:  I agree with Gotterson AJA.
3. [3]
   GOTTERSON AJA:  The applicant, Andrew Stewart Hardie, was indicted on a single count that on 30 September 2023 at Lammermoor he unlawfully did grievous bodily harm to the complainant, Lee John Pessall in contravention of s 320 of the Criminal Code (Qld).  On 24 October 2024, at the District Court at Rockhampton, the applicant pleaded guilty before Judge Clarke.  Having heard submissions on sentence on behalf of the Crown and the applicant, who was legally represented, his Honour ordered that he be imprisoned for a period of two years and six months to be suspended after service of six months, for an operational period of two years and six months.  A conviction was recorded.
4. [4]
   On 21 November 2024, the applicant filed an application for leave to appeal to this Court against the sentence.  The application^[1] was filed by solicitors who were not the solicitors who had acted for the applicant at the sentence hearing.  The sole ground of appeal is that the sentence imposed is manifestly excessive.

Circumstances of the offending

5. [5]
   The following summary of the circumstances of offending is drawn from the Schedule of Facts, exhibit 2.^[2]
6. [6]
   On 30 September 2023, Gregory and Debbie Wilson, the owners of 13 Sandalwood Drive, Lammermoor, hosted a barbeque at their residence.  Several neighbours, including the complainant, the applicant and their respective wives, were invited.  The complainant and the applicant, then aged 57 and 44 respectively, did not know each other prior to meeting at the barbeque.
7. [7]
   All guests were sitting outside in an entertainment area during the afternoon.  They were watching the Australian Football League (“AFL”) Grand Final.  The applicant and the complainant were both drinking alcohol, as were the other guests.
8. [8]
   The applicant and the complainant spoke to each other during the afternoon and into the evening.  At one point, the applicant started to refer to the complainant as “Kochie”, and did so repeatedly thereafter.  Both of them evidently understood this to be a reference to David Koch, an Australian television presenter and long-time Chairman of the Port Adelaide Football Club.  The complainant told the host, Mrs Wilson, that he did not like being referred to by the applicant as “Kochie”.  She told him to let the applicant know and to ask him to stop.
9. [9]
   At around 7.10 pm, the applicant and the complainant were sitting next to each other.  The applicant again referred to the latter as “Kochie”.  The complainant faced up to the applicant and told him to stop using that form of address.  The applicant responded with words to the effect of “Are you fair dinkum, mate?”  The complainant yelled “Yeah, I’m fucking serious”.  The applicant responded by punching the complainant once to his face, hitting him in the nose.
10. [10]
    Two male guests pulled the applicant and complainant apart.  They observed blood coming from the complainant’s nose.  Mrs Wilson drove the complainant to Yeppoon Hospital where he was referred to an ear, nose and throat specialist.
11. [11]
    Shortly thereafter, the applicant participated in an interview with police.  He admitted that he had punched the complainant and to having called him “Kochie”.  He informed police that the complainant had been “right in his face” and “yeah, I chinned him”.

Consequences of the offending for the complainant

12. [12]
    The injury to the complainant consisted of multiple fractures with resultant displacement of the nasal septum and nasal bones.  His injuries were initially treated under general anaesthetic by reduction.  Later, the displacement of the left nasal bone was noted.  It was addressed by bony rhinoplasty on 23 October 2023.  A continuing nasal constriction required a further reduction.  Without medical intervention, the complainant’s injuries would have caused him permanent nasal constriction and facial pain.
13. [13]
    The complainant has ongoing irritation in his sinus and continual partial mucus blockages in both nasal cavities which restrict his nasal breathing.  He uses nasal medications hourly during the day.  He can manage to sleep for about four hours at a time.^[3]
14. [14]
    As a consequence of the assault, the complainant has paid $5,001.82 in out of pocket expenses for his medical treatments.^[4]

The applicant’s personal circumstances

15. [15]
    In the course of his sentencing remarks, the learned sentencing judge observed:^[5]

“You are a mature offender, now 45 years of age.  You work as an operator in the mining industry and have done for many years.  You have been in a stable, lengthy relationship.  Your wife is also in paid employment, and you have two teenage children, one who has just matriculated from high school and one who is just about to commence.  There is no criminal history whatsoever.  You were born and raised in Scotland.  I am told that your parents separated when you were about nine or 10, and you stayed then with your father and your grandmother.  You remained in contact with your mother.  She passed away when you were about 22.  You are the middle brother of three sons from your parents’ union.

You were educated to a year 10 standard, leaving school at 16 and, as I say, you and also your wife have a solid work history.  I am told that you have worked, effectively, in the mining industry from that time and currently work as an underground miner here in the central west of Queensland.  You were working at a mine in New Zealand at one stage where there was a tragedy, the Pike River Mine.  The referees speak very highly of you and say that, from what they have seen of your conduct, especially in a social setting, that this sort of behaviour is out of character for you.  I am prepared to accept their assessment of you.”

16. [16]
    His Honour had before him a report prepared by Alan Keen, a clinical psychologist dated 20 September 2024.^[6]  He continued:^[7]

“There is a report of a psychologist who says that you have some symptoms which may be consistent with a diagnosis for PTSD, post-traumatic stress disorder, and anxiety as a consequence of not being at work on the day of the mining tragedy in New Zealand in 2010 that I referred to earlier.  And also he says that you are afflicted with those conditions because of your concern about the likely outcome of these proceedings here.  He says that your drinking – or your consumption of alcohol levels are high, especially when you are off work on your days off, and says that you have otherwise abused alcohol and there is a low risk of you reoffending, especially if you do not limit your drinking and/or get treatment for your condition, which causes you to lose your temper.”

17. [17]
    None of the above remarks are challenged in this application.

The reasoning underlying the sentence

18. [18]
    The learned sentencing judge noted that the plea was early and that the penalty would be “substantially reduced” on that account.  He said that the case against the applicant was strong, but nevertheless there had been “significant cooperation with the criminal justice system”.^[8]
19. [19]
    His Honour described the sentence that he was about to impose as “just”.^[9]  He explained his reasoning to it in the following terms:^[10]

“Although not mandated by any means, the courts have long denounced alcohol-fuelled episodes of gratuitous violence.  The courts have long considered the resultant impact or consequences as informing the need for a condign or deterrent sentence, including cases such as Amituanai and Brand, which are referred to in the cases of Chitty and Noone to which I have been referred.  The submission on behalf of the prosecution is that on a comparison of those cases and your case – are that you have exposed yourself to a sentence of up to two and a-half years imprisonment and that I should set your parole release date or suspension point at the customary one-third mark, which is, again, not mandated but commonly imposed to record the cooperation that a plea of guilty offers to the criminal justice system.

Ms Marsden has said absolutely everything that could be said for you.  She implores me not to send you to prison today.  She confirms that your partner is in support and that your relationship has been long-term and that you are both in employment.  Apart from your early plea, Ms Marsden confirms that you are remorseful, which is confirmed by the references; that you are willing to offer an apology but have been unable to do so; that you are willing to provide some recompense, although I do not understand that to have been done or made to be available, for that.  I was not told about that.  She confirms that you appreciate that you would benefit from some treatment, although you have not undertaken any.

Ms Marsden confirms that you, in the opinion of the report writer, present as a low risk for reoffending, that this was a single blow.  You did not go on with your attack upon this man.  You have a good employment record and are currently in employment.  It is submitted that either I should wholly suspend the sentence or order your immediate release to parole.  I appreciate the force and thrust of the submissions and, of course, imposing sentence on an offender like you is never as easy task, especially someone who has had a blameless life to this point in time.  I have to be guided by the comparable decisions, which are called that because I must compare them to your case, and, of course, there must be some consistency in sentencing.  You heard the discussion about what occurred in the matter of Chitty.”

New evidence

20. [20]
    At the hearing of application for leave to appeal, counsel for the applicant, who was not the counsel who had appeared for the applicant on sentence, sought leave to rely on an affidavit sworn by his client on 7 January 2025.  This application was unopposed^[11] and leave to read and file the affidavit was granted.
21. [21]
    It is evident from the way this application for leave to appeal has been argued that by not opposing the application for leave with respect to the affidavit, the respondent did not mean to concede that the new evidence justified the forming of an opinion by this Court for the purposes of s 668E(3) of the Criminal Code (Qld) that some other sentence is warranted and should have been passed in this case.  The apparent purpose of the respondent’s approach was, it appears, to facilitate argument as to whether or not such an opinion should be formed.
22. [22]
    The evidence adduced in this affidavit concerns two matters which, the applicant submits, should have been, but, through no fault of his, were not, put before the learned sentencing judge.  The first of those matters is deportation and its impacts.  The second is an offer of compensation.
23. [23]
    Deportation and its impacts:  In January 2011, following the Pike River Mine disaster, the applicant, his wife and two young sons aged three years and three months respectively returned to Scotland for eight weeks.  Whilst there, he and his wife applied for, and were initially granted, employer-sponsored working visas.  They thereupon travelled to Australia as a family and settled in Emerald on 29 March 2011.  They have since called it home.^[12]
24. [24]
    The applicant is not an Australian citizen.  He was granted a permanent residence visa on 11 June 2013.  He has retained his permanent residence status.  He says that his former legal representative did not ask him about either his citizenship, nor his visa status.^[13]  Evidently, his Honour was not informed of them at the sentence hearing.
25. [25]
    Nor was he informed of impacts that would result for the applicant and his family were he to be deported on account of the sentence imposed.  The applicant states that his family is close-knit.  It would be fractured by his long-term departure.  His two teenage sons are at pivotal stages in their respective lives and would wish to stay in Australia.  Their mother would need to support them and would prefer to continue with the career in which she is currently engaged here.^[14]
26. [26]
    Deportation would also have significant adverse financial impacts.  Since the applicant is the main income provider for his family, their residence would have to be sold.  He would not be able to earn an income comparable to what he can earn at  Coppabella Mines, were he to return to Scotland.^[15]
27. [27]
    Offer of compensation:  The applicant states that, motivated by remorse, he asked his former legal representative about making an offer of compensation with a letter of apology to the complainant.  The legal representative suggested he offer $16,000 as compensation, comprised of $5,000 for actual expenses and $11,000 for “BUPA insurance expenses”.  He immediately prepared the funds in readiness; however, he was not further advised whether such an offer was communicated to the complainant.^[16]
28. [28]
    According to the applicant, about a week before the sentence hearing, he had another conversation with his former legal representative and barrister during which he was advised not to make an offer of compensation because it could lead to a civil claim in the future.  Thus, the applicant says, the learned sentencing judge was not informed of his preparedness to pay Court-ordered compensation, or the availability of funds to pay it.^[17]

The structure of the applicant’s argument

29. [29]
    The applicant submits that his sentence is manifestly excessive in two respects, namely, the length of the sentence imposed and the requirement that he serve six months of it in prison.  At the hearing of the application, his counsel contended that the “constellation of mitigating features” of the applicant’s case, when compared to those in broadly comparable cases, called for a sentence of 18 months to two years imprisonment.^[18]  He further contended that the applicant “has a real combination of mitigating aspects that ought not to have required him to serve anytime in jail”.^[19]
30. [30]
    These contentions rely on the two matters the subject of new evidence as being mitigating features or aspects.  Whilst the contentions are clearly not limited to those matters, it is appropriate, at this point, to consider how each of them ought properly to have been taken into account in formulating the sentence.

Deportation and its impacts

31. [31]
    In written submissions, counsel for the applicant contended that deportation was a matter “of real significance” that should have been raised at sentence, but was not.^[20]  That was particularly so because, it was further contended, deportation would result in “exceptional hardship” for both the applicant and his family.^[21]  In oral submissions, counsel linked the likelihood of deportation to “the inevitability” that his client’s visa would be cancelled.^[22]
32. [32]
    I would accept that s 501(3A) of the Migration Act 1958 (Cth) (“MA”) mandates cancellation of the applicant’s visa by the Minister for Immigration.  That is so because the applicant does not pass the character test on account of his substantial criminal record^[23] (he having been sentenced to a term of imprisonment of more than 12 months: s 501(7)(c) MA): and he is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against at State law.
33. [33]
    However, s 501CA(4) MA makes provision for the revocation of a decision made under s 501(3A) to cancel a visa.  If representations are made to the Minister under that provision, the discretion whether to revoke the original decision must be exercised in accordance with the principles contained in Direction 99 issued on 23 January 2023, pursuant to s 499 MA.
34. [34]
    As this Court observed in R v Norris; Ex parte Attorney-General,^[24] the legislative intent at the time of the enactment of s 501(3A) and s 501CA included that a person who fails the character test and is released from criminal custody, would remain in immigration detention whilst revocation is pursued.
35. [35]
    Thus, at the time when the applicant’s sentence was imposed, the operative legislative provisions did not have the effect that he necessarily would be deported on account of it.  For that to occur, the Minister would first have to cancel his visa in accordance with s 501(3A), and then reject any representations seeking revocation of the cancellation.
36. [36]
    Furthermore, despite the mandatory terms of s 501(3A), events subsequent to the sentencing have demonstrated that, as a matter of fact, cancellation of the applicant’s visa has, at no time, been an inevitability.  In this respect, it was accepted at the hearing of this application on a date some three months and 12 days after the sentence was imposed, that the Minister had not cancelled the visa.  Nor had there been any indication that the Minister was preparing to do so.^[25]

Offer of compensation

37. [37]
    At the sentence hearing, counsel for the applicant informed his Honour that her client had told police that he wished to offer the complainant assistance with any medical expenses.^[26]  Counsel added that “that offer stands today”.^[27]
38. [38]
    Thus, unlike the matter of deportation, reimbursement of medical expenses was raised before the learned sentencing judge.  As the extract from the sentencing remarks set out at [17] ante of these reasons reveals, his Honour did refer to it in his sentencing remarks.  He did so in a context of the applicant’s remorse.
39. [39]
    It is noteworthy that both the offer that the applicant says he discussed with his former legal representative and the offer to which reference was made at the sentence hearing, were in respect of medical expenses incurred by the applicant or his medical insurer only.  No offer by way of compensation for pain and suffering endured by the complainant was ever in contemplation.  The applicant’s references to “offer of compensation” in his affidavit and submissions need to be so understood.
40. [40]
    As well, although the applicant has sworn that he “immediately prepared the funds” for the offer he had discussed with his former legal representative, he has not detailed what that preparation might have entailed.  Specifically, he has not sworn that such funds were placed into a separate bank account of his or were paid into his former legal representative’s trust account.  As the evidence stands, no particular steps of that kind had been taken of which the learned sentencing judge ought to have been informed.

Was the sentence manifestly excessive?

41. [41]
    As I have observed, the applicant submits that his sentence is manifestly excessive in two respects, namely, imprisonment of two and a half years duration and in requiring him to serve any part of it in prison.  He further submits that his sentence should be set aside and that he should be re-sentenced by this Court to imprisonment of between 18 months to two years duration.  In the hope that this Court would make such orders at the conclusion of the hearing of the application, his counsel proposed that the sentence be suspended after the three months 12 days that the applicant had served to that point, for an operational period matching the head sentence.  I pause here to note that counsel for the applicant contended that, so structured, the sentence would not trigger the mandatory visa cancellation provision in s 501(3A) MA.  It is unnecessary, at this point, to consider the correctness of that contention.
42. [42]
    The applicant accepts that in order to succeed, he must demonstrate that the sentence imposed on him falls outside the range established by broadly comparable decisions and that it does so to such a degree as to render the sentence, “unreasonable or plainly unjust”.^[28]
43. [43]
    In written and oral submissions, the applicant placed particular reliance on the sentence imposed on appeal by this Court in R v Iese.^[29]  In that case, the 40 year old offender punched a man to the head over a poker machine dispute, fracturing his eye socket and thereby causing him grievous bodily harm.  The offender was remorseful and returned to the scene to leave his details.  He provided a written apology and offered some compensation.  The offender had a minimal criminal history and deportation was not a relevant consideration.  He was the main provider for his family.  This Court held that an error had occurred at the original sentence hearing and re-sentenced the offender.  The head sentence of 18 months imprisonment was not in dispute.  By that time, the offender had served 12 days in custody.  In the Court’s view, no useful purpose would have been served by requiring him to undergo further custody.  His sentence was suspended on that basis for an operational period of two years.
44. [44]
    A significant factor to which this Court gave due recognition in Iese was that immediately preceding the punch, the man took a number of steps very quickly towards the offender invading his personal space.  The manner of approach was apt to scare the offender.^[30]  It was described by the Court as “goading conduct”.^[31]  There is no comparable factor in the applicant’s case.
45. [45]
    Both the applicant and the respondent have referred to two sentencing decisions which were drawn to the attention of the learned sentencing judge.
46. [46]
    In R v Noone^[32], a 51 year old offender who had pleaded guilty to a single count of grievous bodily harm was sentenced to two years imprisonment with a parole release date after serving six months.  He was also ordered to pay $5,000.00 in compensation within the two year period.  This offender punched a female person when confronted about his behaviour.  She was knocked to the ground by a punch and then punched again while on the ground.  She suffered an orbital blowout fracture that impaired her vision.  The offender had a criminal history with some dated entries for violence.  He had references that demonstrated that when sober, he was respectful, a hard worker, and a good parent.  It was accepted that he was remorseful.  The offender applied for leave to appeal on the ground that his sentence was manifestly excessive.  Leave was refused.  Lyons SJA (with whom the other members of the Court agreed) held that not only was the sentence within range, but also that it provided an appropriate period to pay the compensation.^[33]
47. [47]
    The offender in R v Chitty Ex parte Attorney-General (Qld)^[34] was sentenced to two and a half years imprisonment with immediate release on parole for an offence of grievous bodily harm.  He was 25 years of old at the time.  At a restaurant, he was approached by a male person whom he did not know and whose conduct was described as “uninvited and confrontational”.  This person suggested that he and the offender go outside to fight.  As they walked towards the door, the offender punched the person once to the face.  The latter fell to the floor.  His injuries included a jaw broken in three places which necessitated surgery and repair of his teeth.  He had ongoing vestibular dysfunction, as well as regular headaches and vertigo.
48. [48]
    The account that the offender in Chitty gave to police was inconsistent with the restaurant’s CCTV footage.  His criminal history had a single entry of affray when, as an 18 year old, he had punched another person.  He had good references, was in employment, and was genuinely remorseful.
49. [49]
    The Attorney-General appealed the sentence as being manifestly inadequate.  In allowing the appeal, Boddice J (as his Honour then was), with whom the other members of the Court agreed, affirmed the direct relevance of injuries sustained by a victim to a sentence.  His Honour said:

1. “[48]
   Whilst it may be accepted that the sentencing Judge properly had regard to the respondent’s age, mental health and prospects of rehabilitation, his conduct involved a forceful punch without warning in a public place, with catastrophic consequences. The criminal law has long recognised that culpability for a criminal act does not stand in isolation from its consequences. In R v Amituanai, Pincus JA observed:^[35]

‘It is the extent of that damage which is the principle justification for the sentence imposed below. One could perhaps defend a legal system in which the particular consequences for the victim of such a blow are treated as of little significance and the court is required to focus solely on the circumstances of the blow itself. But that is not our system; for reasons which are evident enough, the offender will find that his punishment may depend on the extent of the damage the victim happens to sustain. That is, the risk that a blow which might by good luck have caused little damage in fact has catastrophic results, as it had here, is one which is shared by the victim and the offender.’”

50. [50]
    His Honour concluded that “a sentence which did not require (the offender) to serve actual custody, did not have proper regard for the true nature of (this offender’s) serious offending and its consequences”.^[36]  The sentence was on that account manifestly inadequate.^[37]  In resentencing the offender, his Honour observed:

1. “[58]
   Although the respondent’s offending conduct and the consequences of his actions may have justified a head sentence significantly higher than two and a half years’ imprisonment, it is conceded by the Attorney-General that the head sentence fell within a proper exercise of the sentencing discretion.”

The Court made orders to the effect that the offender spend eight months in custody before becoming eligible for parole.

51. [51]
    I refer also to the decision of this Court in R v Stringer.^[38]  In that case, the 23 year old offender purposely punched a 21 year old male person without warning, fracturing his left cheekbone and severing a facial nerve.  The offender did so because he understood that the person had somehow been involved in an earlier assault on his friend and had taunted the offender and others.  He pleaded guilty to unlawfully doing grievous bodily harm.  The offender had a minor criminal history, cooperated with police, was extremely remorseful, had written an offer of apology, and offered to compensate the person for any financial loss.  A factual error at sentence was established.  The offender was resentenced by this court to two years imprisonment with a parole release date after “about six months”.^[39]
52. [52]
    The sentences imposed for grievous bodily harm in Noone, Chitty and Stringer were for terms of imprisonment ranging from two to two and a half years.  The offending in each of those cases was broadly similar to that of the applicant in that the harm was inflicted by punching, the wounding required surgery, and continuing impairments to bodily function or comfort resulted.  The offender in each case was genuinely remorseful.  They were supported by references, engaged in employment, and in Noone’s case, he was a good parent.
53. [53]
    It is true that each offender had some criminal history but it was minor or dated such that it evidently did not play a significant role in the setting of his sentence.  It is also true that in Iese, the sentence was for 18 months; however, as I have noted, the offender in that case was goaded by the injured person into punching him.
54. [54]
    In my view, the comparable sentences to which I have referred preclude an inference that the applicant’s head sentence of two and a half years imprisonment is unreasonable or plainly unjust.  To the contrary, it sits comfortably within the range demonstrated by those cases.
55. [55]
    I now turn to the requirement that the applicant serve six months of the sentence in prison.  In its length, that requirement is consistent with those set in Noone, Chitty and Stringer of six months, eight months and about six months, respectively.  In none of those cases was the offender to serve no time in custody.  Even in the distinguishable case of Iese, some time in custody was served.
56. [56]
    Compensation was a factor which was taken into account in the sentencing in Iese, Noone and Stringer.  In the present case, the learned sentencing judge did take it into account in the context of the applicant’s remorse.
57. [57]
    The factor of deportation did not arise in any of the four cases to which I have referred.  For the reasons I have given, I consider the risk that the applicant would be deported to be very much a matter of speculation.  It could not have warranted the attribution of significant weight to it in determining the applicant’s sentence.
58. [58]
    I am therefore unpersuaded that the applicant’s sentence is manifestly excessive in requiring him to serve some part of it in custody.  I note that the period of six months in custody is one-fifth of the duration of the term of imprisonment, that is to say, less than the one-third often imposed on a plea of guilty.  That, together with the suspension of the sentence thereafter rather than parole, adequately address the totality of the applicant’s mitigating circumstances.

Disposition

59. [59]
    For these reasons, I conclude that the applicant has not established that his sentence is manifestly excessive.  His application for leave to appeal it should therefore be refused.  I would propose the following order.

Order

1. Application for leave to appeal refused.