R v Brookes[2025] QCA 38

SUPREME COURT OF QUEENSLAND

1. [1]
   BODDICE JA:  I agree with Brown JA.
2. [2]
   BROWN JA:  The applicant, Beau Daniel Brookes was sentenced for one count of grievous bodily harm on 4 December 2024 to two years six months with a parole release date of 3 August 2025 and compensation of $6,000.  Twenty four days of pre-sentence custody was declared as time served.
3. [3]
   The applicant seeks leave to appeal the sentence on two grounds:

   1. That the sentence was manifestly excessive;
   2. That the learned sentencing judge erred in not taking into account the time spent in pre-sentence custody when calculating the parole release date.

Circumstances of Offending

4. [4]
   The applicant and his brother were having dinner at a hotel in April 2022.  Another group of people which included the complainant started to fight.  The applicant and his brother were not a part of it.  The complainant, who was 22, was standing close to the applicant.  Neither were involved in the fight.  The complainant placed himself to stop the complainant’s friend getting further involved in the fight but in the process of doing so pushed the applicant’s chest.  That did not lead to anything.  The applicant then tried to separate others from fighting.  In that process the complainant’s friend threw a punch at the applicant and they had a fight.
5. [5]
   Security then began to evict people.  The applicant and the complainant’s girlfriend had words on the way out and then the applicant and complainant began to fight.  The complainant’s friend and the applicant’s brother also got into a fight.  The group then split up and were out on the public street.  The applicant then saw the complainant approaching his brother and perceived that he was going to assault his brother.  He ran over to him and hit the complainant on the side of his head.
6. [6]
   The complainant fell and hit his head on the footpath and suffered serious injuries involving multiple skull fractures and internal bleeding in the skull which caused him to be in hospital and rehabilitation for weeks.  He has continued to suffer a number of physical effects of the incident including loss of hearing on the right hand side as well as impaired higher order cognition.  It is not known whether or not they will continue to improve.  The complainant has suffered significant trauma, physically, mentally and emotionally, as a result of the assault and had to find a new life.
7. [7]
   The applicant and his brother left the scene after the complainant fell not appreciating the seriousness of his injuries.

The Applicant’s Antecedents

8. [8]
   The applicant was of mature age being 32 at the time of the offending.  He was a father of two children, one of whom lived with him following a separation in 2021.
9. [9]
   He had a relevant past criminal history much of which was dated but included an assault in 2007 for which he received probation, when he was 18 and had run up behind a fifteen year old and knocked him unconscious after the fifteen year old had gone to hit someone else and accidentally hit the applicant instead.  He had also struggled with a police officer and unintentionally knocked him to the ground.  Following that offending he engaged in anger management and other workshops and was clear of drugs.
10. [10]
    In 2009 he committed a further assault or was party to an assault when carrying out a burglary.  The applicant then had a long period without offending during which time his children were born and he maintained employment.  In 2020 he was convicted of assault occasioning bodily harm which resulted in him receiving an eighteen months’ probation order and an order for compensation.  No conviction was recorded.  His offending constituting grievous bodily harm was committed while he was on probation with eighteen days remaining, an aggravating feature of his offending.
11. [11]
    The applicant had a difficult and dysfunctional childhood where he was exposed to domestic violence and had experienced periods of homelessness as a teenager.  He had tried to protect his younger brother (who he was with on the night of the incident) from the trauma to which they were exposed growing up.
12. [12]
    During the period 2009-2020 he had worked, maintained his home life and was focused on his children.  In 2021, he suffered a workplace injury which caused a permanent injury to his shoulder and limited his ability to work in areas he particularly enjoyed.  That contributed to his mental health declining.  His marriage broke up after that time.
13. [13]
    After spending twenty four days in custody the applicant was released on strict bail conditions which included a curfew from 6 pm to 6 am.  He abided by those conditions for two and half years.
14. [14]
    At the time of sentence he was working in a responsible position and had the support of a number of people who gave references.  After his offending he had undertaken psychological counselling for depression and anxiety and intervention for substance abuse.  He also undertook courses for alcohol abuse and anger management.  A psychologist from whom he received counselling considered he had good insight into management of his anger.  He was remorseful and wrote a letter of apology to the complainant.

The Sentence

15. [15]
    The learned sentencing judge in determining the sentence to impose took into account:

    1. that the applicant had entered a plea of guilty and had demonstrated remorse entitling him to a more lenient sentence;
    2. his criminal history which, although largely dated, she considered relevant given it had involved assaults;
    3. the circumstances of the offending.  The sentencing judge accepted that the applicant thought the complainant was a threat to his brother even though that was not apparent on the CCTV footage viewed by her Honour;
    4. that the assault occurred in circumstances where the complainant would not have seen it coming, which she considered was a serious example of public violence on a public street;
    5. that the applicant did not render assistance but accepted he did not appreciate the extent of the injuries suffered by the complainant;
    6. the significant injuries caused to the complainant and the considerable impact on his life;
    7. the applicant’s steps towards rehabilitation and the supportive environment he had surrounding him;
    8. his treating psychologist considering that the applicant had a positive prognosis and had insight into his inability to manage his anger;
    9. deterrence, both general and personal, and denunciation were significant factors in the sentence imposed;
    10. the several authorities to which she was referred;
    11. that the applicant had spent time in custody and had performed well on stringent bail conditions.
16. [16]
    The sentencing judge considered ordinarily a sentence of three and a half years would be appropriate but reduced the sentence to two and a half years “to give effect to the positive factors and the contextual circumstances of this offence, as well as the offer of compensation”.^[1]  She determined he serve a third or eight months in custody.

Specific Error

17. [17]
    The applicant contends that in setting the parole release date at 3 August 2025 her Honour sentenced him to eight months 24 days, because she did not take into account that he had already spent 24 days in custody.  In that regard the applicant points to the sentencing judge’s remark that he was to serve “a third or eight months in custody”.^[2]
18. [18]
    The Crown contend that eight months twenty four days fell between eight months and a third of the sentence of imprisonment, which was actually a period of 10 months not eight months.  The Crown further contends that given her Honour’s reference to a third as well as eight months before her pronouncement of the sentence where she specified the parole release date, there was no apparent error in her Honour’s sentence.  The Crown is plainly correct.  Her Honour did not fall into error in setting the parole release date.  This ground has no prospect of success.

Manifest Excess

19. [19]
    The applicant otherwise contends that the sentence was manifestly excessive because the yardsticks represent lower sentences imposed than the sentence imposed upon the applicant.  The applicant relied on R v Tapiolas [2008] QCA 118, R v Iese [2017] QCA 68, R v Stringer [2014] QCA 342 and R v Clark [2012] QCA 318.  The applicant contends that if this Court accepts the original sentence was manifestly excessive, a sentence of eighteen months to two years imprisonment with parole release after serving four months and $6,000 compensation should be imposed.
20. [20]
    The Crown contends that the sentence is consistent with the yardsticks and not manifestly excessive.
21. [21]
    At sentence, the Crown submitted that a sentence of between three to four years imprisonment was appropriate relying on R v Thompson [2019] QCA 209 and R v Castle; Ex parte Attorney General (Qld) [2014] QCA 276 and R v Chitty; Ex parte Attorney General (Qld) [2021] QCA 2.
22. [22]
    In order to establish a sentence is manifestly excessive, it is not enough to establish that a sentence was different or even markedly different from sentences imposed in other matters.  It must be demonstrated that the difference is such that the Court “is driven to conclude that there must have been some misapplication of principle”,^[3] or that the sentence is “unreasonable or plainly unjust”.^[4]
23. [23]
    The offending and circumstances the subject of the decisions in Tapiolas and Stringer involved significantly younger offenders than the present offender where the injuries inflicted were not as serious as the present case.  In Tapiolas the offender was only nineteen years of age with no criminal history.  The Court of Appeal did not interfere with the head sentence of eighteen months but set aside the order he spend four months in custody, finding given his youth, history and rehabilitation the appropriate order was for him to remain in the community.  In Stringer the offender was 23 years of age with a minor criminal history and made full admissions to the police, unlike the applicant in the present case, as well demonstrating remorse and significant rehabilitation.  It was accepted by the Crown that the sentencing judge in imposing a three year sentence of imprisonment had made an error in overstating the permanent effect of the injuries of the complainant.  The Court on resentencing imposed a two year sentence with parole release after six months.
24. [24]
    Neither of the cases relied upon by the applicant demonstrate that the sentence in the present case is the result of a misapplication of principle and manifestly excessive.
25. [25]
    Iese involved an older offender and the offending was slightly less serious insofar as the complainant had stepped towards the applicant and struck him first before he retaliated.  The complainant’s injuries while continuing to cause physical pain and anguish were not as serious as the injuries in the present case.  The applicant had a minor criminal history.  The applicant in that case had returned to the scene of the assault and left his details.  He made admissions to the police and demonstrated remorse and offered compensation.  Following the identification of specific error, Gotterson JA^[5] noted that it was not in dispute that the eighteen months sentence for imprisonment was appropriate.  The sentencing judge had determined that the applicant should serve four months in custody following which his sentence was suspended.  In determining the question of time that should be spent in custody, Gotterson JA considered whether the applicant should however serve more than twelve days, observing that this Court “has, at times, observed in cases of occasioning grievous bodily harm that serving some time in actual custody is ordinarily called for”.^[6]  Gotterson JA found that  the applicant’s conduct and personal circumstances “are out of the ordinary”.^[7]  His Honour considered his risk of reoffending was very low and there was account of the complainant’s goading conduct just prior to the assault.  The applicant had been granted bail after twelve days in custody pending appeal and the Court considered there was no purpose to be served by returning him to custody.  A sentence of eighteen months suspended after 12 days was imposed.  The circumstances of the assault, the minor criminal history and the immediate action taken by the applicant to redress what he had done and his co-operation with the police were not present in this case.  While Iese may indicate a lesser sentence may have been open to the sentencing judge in this case, it does not demonstrate an error of principle in relation to the sentence imposed.
26. [26]
    In Chitty, the complainant had been the provocateur challenging the respondent to “take it outside” and made some physical contact.  When the respondent and his friend were walking out of McDonald’s with their food the complainant turned towards the respondent’s friend at which point the respondent hit the complainant once in the face.  The complainant fell and struck the back of his head.  The respondent and his friend left without providing assistance.  The complainant suffered serious injuries but not quite as serious as the complainant in the present case.  The respondent was sentenced to two and half years with immediate release on parole.
27. [27]
    In Chitty, the respondent was 25 at the time of offending, considerably younger than the applicant in the present case, had had a difficult upbringing and had a promising sporting career cut short by injury and had then focussed on employment.  The respondent had a prior criminal history with a single entry where he had delivered a single punch to a person in a public area.  He was at the time in a downward spiral experiencing personal issues and had been untreated for what was later said to fit the criteria for major depressive disorder, generalised anxiety and panic disorder, which were found by the sentencing judge to have impaired his function making his case less important for general deterrence.  The respondent was found to be remorseful and had been receiving psychological treatment at the time of sentence and had a positive prognosis.
28. [28]
    The Attorney General appealed the sentence contending that it was manifestly inadequate in not requiring the respondent to serve time in custody.
29. [29]
    The Court of Appeal upheld the appeal and sentenced the respondent to eight months in custody.  In Chitty Boddice JA (with whom Morrison JA and Henry J agreed) considered that “the imposition of a sentence, which did not require the respondent to serve actual custody, did not have proper regard for the true nature of the respondent’s serious offending and its consequences”.^[8]  Boddice JA noted that while the sentencing judge had proper regard to the respondent’s age, rehabilitation prospects and mental health “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.”^[9]
30. [30]
    His Honour also observed that the respondent’s offending conduct and consequences of his actions may have justified a head sentence significantly higher than two and a half years but the Attorney General had accepted that it was within range.  His Honour regarded that concession as appropriate given the respondent’s relative youth and personal circumstances including his undiagnosed and untreated medical conditions.  Those circumstances are not present in this case.
31. [31]
    The decision in Chitty supports the sentence imposed in the present case.
32. [32]
    In Thompson the applicant and his friend had been at a work function in the Brisbane CBD.  The complainant, his wife and another couple had been to dinner.  The groups were unknown to each other.  While waiting for an uber the applicant yelled something in the direction of the complainant and the complainant yelled back.  The applicant walked over to the complainant but the complainant’s wife intervened and the complainant walked away.  The applicant then yelled out a threatening statement.  The complainant turned towards the applicant who kicked him in the chest.  The complainant caught his foot and the applicant fell to the ground.  The complainant helped him up and said we are done.  The male of the couple went to grab the applicant and the applicant’s friend rushed towards the applicant.  The women tried to de-escalate the situation.  The applicant then ran towards the complainant and hit him in the jaw.  The complainant fell and struck his head on the footpath.  The applicant and the associate ran away.  The complainant had severe injuries to his jaw, nerve damage and a laceration to his cheek.  The complainant had some ongoing symptoms and suffered recurrent bouts of depression.  The sentence of three years six months suspended after fourteen months was not interfered with by the Court of Appeal.
33. [33]
    The applicant in Thompson was a similar age to the present applicant, had a relevant criminal history including for assault but not for serious violence, had a good employment record and as a result of the charges had had his visa revoked and would likely be deported.  He had not however taken the rehabilitation steps which the applicant in this case had, had denied involvement initially and was not ordered to pay compensation.  Gotterson JA^[10] regarded a starting point at four years as being at the upper end of sentences which might have been imposed but considered the moderated sentence of three and a half years with a six month allowance for the period of immigration detention and deportation to be generous.^[11]  The three and a half year sentence supports the sentence imposed in this case.
34. [34]
    In considering the appropriate sentence any sentence must appropriately reflect the need for deterrence “when one inflicts serious violence to the head of another the risk of catastrophic results must be shared by the offender as well as the victim.  An appropriate sentence must be one that will discourage and deter such resorts to violence.”^[12]
35. [35]
    At the oral hearing the applicant’s counsel, quite properly brought the Court’s attention to R v Hardie^[13] and conceded it was difficult in light of that case to contend the sentence of two and a half years was manifestly excessive.  Notwithstanding the differences in that case from the present, that concession was properly made.  In R v Hardie the sentence of two years and six months, suspended after six months, was found not to be manifestly excessive.  The injuries to the complainant in that case were not as serious as the present case although the applicant was the antagoniser.  The applicant had no criminal history, had a good employment record, a stable home life and was highly regarded with his conduct being seemingly out of character.
36. [36]
    While the applicant’s counsel did her best to contend that the time in custody to which the applicant was sentenced was manifestly excessive given his personal circumstances, steps towards rehabilitation, compliance with bail and payment of compensation, the review of the above authorities referred to as yardsticks do not demonstrate a misapplication of principle and support the sentence imposed, including time in custody.
37. [37]
    While the applicant’s efforts towards rehabilitation are laudable and the applicant has overcome significant challenges in his life, his circumstances were not such that time spent in custody was not called for in this case.  The applicant’s age, relevant criminal history with similar offending and the serious nature of the offending and severity of the injuries suffered and his leaving the scene did support the fact that the sentence of three and a half years was open to the trial judge to impose before taking into account the mitigating factors in the applicant’s favour, including the payment of compensation.  The applicant had been on probation at the time of the offending for an assault.  The imposition of a two and a half year sentence to serve slightly less than a third of the reduced period of imprisonment was a moderate sentence which appropriately took into account the rehabilitative steps taken by the applicant and other mitigating circumstances.
38. [38]
    The applicant has not demonstrated an error of principle.

Order

1. 1. The application be refused.

39. [39]
    GOTTERSON AJA:  I agree with the order proposed by Brown JA and with her Honour’s reasons for it.