R v Broadby
[2025] QCA 55
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- Unreported Judgment
- Appeal Determined (QCA)
- R v Broadby[2025] QCA 55
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R v Broadby[2025] QCA 55
R v Broadby[2025] QCA 55
SUPREME COURT OF QUEENSLAND
CITATION: | R v Broadby [2025] QCA 55 |
PARTIES: | R v BROADBY, Kyam Keith (applicant) |
FILE NO/S: | CA No 255 of 2022 SC No 88 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | Sentence Application |
ORIGINATING COURT: | Supreme Court at Cairns – Date of Sentence: 4 November 2022 (Brown J) |
DELIVERED ON: | 17 April 2025 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 April 2025 |
JUDGES: | Flanagan and Bradley JJA and Freeburn J |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant was found guilty of manslaughter – where the applicant was sentenced to nine years imprisonment – where the applicant contends that the learned sentencing judge separated a consideration of the relevant circumstances in arriving at a head sentence of nine years from those circumstances relevant to the making of a declaration of a serious violent offence – whether the learned sentencing judge failed to adopt an integrated approach in the exercise of the sentencing discretion CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was sentenced to nine years imprisonment – where the conviction was declared to be a conviction for a serious violent offence – where the applicant contends that the sentence which should have been imposed was one where the parole eligibility date was not postponed beyond the halfway mark of nine years – whether the sentence was manifestly excessive with respect to the imposition of a serious violent offence declaration Penalties and Sentences Act 1992 (Qld), s 159A Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, cited Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited R v Dean, R v Selmes, R v Phillips [2018] QCA 124, followed R v Dwyer [2008] QCA 117, followed R v Free; ex parte Attorney-General (Qld) (2020) 4 QR 80; [2020] QCA 58, cited R v Hedlefs [2017] QCA 199, followed R v Lawler [2020] QCA 166, followed R v McDougall & Collas [2007] 2 Qd R 87; [2006] QCA 365, cited |
COUNSEL: | D V Nguyen with R M Hew for the applicant (pro bono) E L Kelso for the respondent |
SOLICITORS: | AKS Law for the applicant (pro bono) Director of Public Prosecutions (Queensland) for the respondent |
- [1]FLANAGAN JA: After a nine day jury trial before Brown J (as her Honour then was) in the Supreme Court of Queensland at Cairns, the applicant was found not guilty of murder, but guilty of manslaughter.
- [2]Immediately following the jury’s verdict, both counsel indicated to her Honour that they were ready to proceed to sentence.
- [3]Her Honour sentenced the applicant to imprisonment for nine years. The conviction was declared to be a conviction for a serious violent offence. Pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld), pre-sentence custody of 241 days between the period 8 March 2022 to 3 November 2022 was declared as time already served under the sentence.
- [4]The applicant seeks leave to appeal his sentence on the following two grounds:
- (a)her Honour erred by failing to adopt an integrated approach in the exercise of the sentencing discretion (Ground 1);
- (b)the sentence was manifestly excessive with respect to her Honour imposing a serious violent offence declaration (Ground 2).
- [5]For the reasons which follow, the application for leave to appeal against sentence should be dismissed.[1]
- The Sentencing Proceedings and Remarks
- [6]
- “a.On 10 July 2019 the deceased had been drinking with a person named Ms Liz Marshall; both drunk to excess. Something occurred between them which resulted in the deceased headbutting Ms Marshall.
- b.After the applicant became aware of the incident between the deceased and Ms Marshall, he along with two other males, Mr Davis and Mr Hume, confronted the deceased. A scuffle broke out between the deceased and Mr Hume; Mr Hume punched the deceased, but this punch did not contribute to the death. The deceased was pulled out or fell out of his truck and had a hammer in his hand. The deceased started swinging the hammer around; there was yelling and swearing and some attempts to get him toput the hammer down.
- c.The applicant, Mr Davis, Mr Hume and Ms Marshall walked towards the deceased who threatened to hit the applicant’s BMW with the hammer. The deceased moved towards the applicant’s then-girlfriend, Ms Bell-Pickett, with the hammer; she was scared and upset. The applicant intervened and punched the deceased; the deceased swung the hammer towards him. The applicant took off his shirt, picked up a hammer and told the deceased he would kill him. The applicant lowered the hammer but, at this point, the deceased picked up a piece of firewood and a star picket. The situation escalated with the applicant, Mr Hume and Mr Davis walking towards the deceased who was walking backwards. The deceased turned around, ran and dropped the star picket as he went.
- d.During the chase, Mr Hume stopped his pursuit of the deceased. The deceased hid in the shadows of the annex of a caravan. The applicant was the first to find the deceased and yelled ‘Keep away from my fucking woman’ and punched the deceased. He hit the deceased which caused him to fall. The applicant punched, kicked and stomped on the deceased’s head; Mr Davis joined in the assault. After the deceased stopped moving and was unconscious, the applicant sought to pull Mr Davis off the deceased. The applicant and Mr Davis left and went back to the camp. The applicant spoke to his then-girlfriend but quickly left with the arrival of the police, hid under a caravan and later went to another caravan.
- e.The applicant’s assault was short but ferocious, leaving the deceased with severe facial fractures including a Le Fort fracture which resulted in his facial structure becoming disconnected from his skull; there were also neck injuries. The bleeding from the facial and neck injuries contributed to the deceased going into cardiac arrest. The applicant was revived by paramedics, but his condition was not compatible with life; his life support was turn[ed] off on 15 July 2019.”
- [7]As to the basis of the applicant’s criminal liability, her Honour found that his blows and the force with which they were applied showed that he was responsible for, and substantially caused or significantly contributed to, the death of the deceased. This finding was based on the fact that the facial injuries and neck injuries inflicted by the applicant were capable of causing the death of the deceased.
- [8]Her Honour further observed that even if it had not been found that the applicant inflicted the fatal blow, he would have foreseen the death of the deceased as a possible consequence of the assault carried out by him and Mr Davis.
- [9]Her Honour accepted however, that the applicant did not have an intention to inflict grievous bodily harm or death. Her Honour further accepted that there had been some factual provocation and that the applicant was angry with the deceased and had sought to teach him a lesson. Her Honour made specific reference to the fact that when the applicant noticed that the deceased was not moving and unconscious he took steps to pull Mr Davis off the deceased. Her Honour noted however, that the deceased had sought to escape the situation.
- [10]Her Honour took into account that the applicant had expressed genuine remorse.
- [11]Having noted that the maximum penalty for manslaughter is life imprisonment, Brown J took into account the applicant’s antecedents. These included that he was 23 at the date of the offending and 26 at the time of sentencing. He had a prior criminal history for dishonesty and assault and that after the killing of the deceased, he had been sentenced in Tasmania to nine months in prison. Her Honour noted that the applicant had a difficult family life and suffered from ADHD. In relation to a Home Detention Report, her Honour noted that the applicant had difficulty managing his emotions, and in particular, had anger management deficits. He was also a drug user but there was no evidence of use of drugs at the relevant time.
- [12]While the Crown prosecutor submitted that the applicant had no insight into the nature of his offending, her Honour did not accept this as entirely accurate and considered that he had guarded prospects of rehabilitation.
- [13]As to the appropriate sentence, the Crown prosecutor had submitted to her Honour, by reference to a number of comparable decisions, that a head sentence in excess of ten years should be imposed. This would carry with it an automatic serious violent offence declaration requiring the applicant to serve 80 per cent of the term imposed. This sentence was sought by the Crown prosecutor on the basis that the applicant was someone from whom the community required protection, given the ferocity of the assault in which the deceased had been beaten into a state of unconsciousness.
- [14]Defence counsel submitted that the head sentence could be in the vicinity of eight to ten years. He further submitted that the aggravating features of the offending permitted a head sentence in the order of nine to ten years. Defence counsel submitted:
- “The bottom end of that, of course, would be nine years with no parole date set. The middle ground would be nine years with an SVO. In my submission, the higher ground would be 10 with an SVO.”[3]
- [15]
- “Having taken into account all of the factors, including that you are not somebody who has come to the Court without a prior criminal history, and that your actions albeit that they went for a very short period of time, were of a severe nature, I have determined that the appropriate sentence to impose upon you is one of nine years. I am satisfied, given the severe nature of the assault that occurred and that it occurred out of anger, that the offence should be declared to be a serious violent offence and that the declaration is consistent with the factors giving rise to the making of such a declaration, as discussed in R v McDougall & Collas [2006] QCA 365, as well as R v Free; Ex parte Attorney-General (Qld) [2020] QCA 058.
- In sentencing you to nine years, I have taken into account the late attempt to plead guilty offered to the Crown, and while it is not relevant to this offending, the fact that you have already spent some nine months previously in custody. I have also taken into account your young age, and the fact that you have had a difficult childhood which has impacted you and resulted in you being somebody who does not seem to be able to control their anger and reacts to it, which is what happened that night, with the consequences now have flowed.”
- Ground 1: Failure to adopt an integrated sentencing approach
- [16]By reference to observations of the High Court concerning general principles of sentencing in Markarian v The Queen[5] and Barbaro v The Queen[6], namely that an instinctive synthesis approach to sentencing should be adopted such that a sentence should not be broken down into component parts, the applicant seeks to establish error. The asserted error is that her Honour should not have separated a consideration of the relevant circumstances in arriving at a head sentence of nine years from those circumstances relevant to the making of a declaration of a serious violent offence.
- [17]The applicant submits that the head sentence of nine years was “fixed absent any consideration of the consequences of such declaration, and absent any consideration as to what the overall term of imprisonment should be, having regard to whether or not a declaration is made”.[7] The applicant further submits:
- “Immediately following the order of nine years imprisonment her Honour asserted that the declaration was consistent with the factors in McDougall and R v Free; ex-parte Attorney-General (Qld)…; however, there was no reference to those factors and no reasons why there was consistency.”[8]
- [18]These submissions cannot be accepted. It is not correct, as a matter of law. Circumstances which are relevant to a consideration of an appropriate head sentence are also equally relevant to deciding whether a serious violent offence declaration should be made. This is evident from this Court’s observations in McDougall:[9]
- “…
- the discretionary powers granted by s 161B(3) and (4) are to be exercised judicially and so with regard to the consequences of making a declaration;
- a critical matter is whether the offence has features warranting a sentence requiring the offender to serve 80 percent of the head sentence before being able to apply for parole. By definition, some of the offences in the Schedule to the Act will not necessarily – but may – involve violence as a feature, such as trafficking in dangerous drugs or maintaining a sexual relationship with a child;
- The discrete discretion granted by s 161B(3) [and] (4) requires the existence of factors which warrant its exercise, but the overall amount of imprisonment to be imposed should be arrived at having regard to the making of any declaration, or not doing so;
- the considerations which may be taken into account in the exercise of the discretion are the same as those which may be taken into account in relation to other aspects of sentencing…”. (emphasis added).
- [19]In the present case, the offence was manslaughter which involved an unlawful killing by what was described by her Honour as a “ferocious” assault. It involved the applicant punching, kicking and stomping the deceased leaving him with severe facial fractures to the extent that his facial structure became disconnected from his skull. These considerations are equally relevant to determining the head sentence as they are to making a serious violent offence declaration.
- [20]A second difficulty with the applicant’s submission is that when her Honour’s sentencing remarks are read as a whole, in the context of the sentencing submissions made by counsel, her Honour did in fact adopt an integrated process in determining the appropriate sentence. In making the declaration, her Honour made specific mention of the severe nature of the assault and the fact that it occurred out of anger. Her Honour’s approach in this respect was consistent with the observations of this Court in R v Free; ex-parte Attorney-General,[10] where the Court stated:
- “Where a case calls for consideration of whether to exercise the discretion to make a serious violent offence declaration, as part of the integrated process, what the sentencing court is required to do is consider all relevant circumstances, including in a case such as this the matters in ss 9(1), 9(2) and, primarily, s 9(6) Penalties and Sentences Act 1992, to determine whether there are circumstances which aggravate the offence in a way which suggests that the protection of the public, or adequate punishment, requires the offender to serve 80 per cent of the head sentence before being able to apply for parole.”
- Ground 1 fails.
- Ground 2: Manifest Excess
- [21]In relation to this ground the applicant does not submit that the head sentence of nine years imprisonment is itself manifestly excessive; rather, it was her Honour making the serious violent offence declaration that rendered the sentence manifestly excessive. The applicant submits that the sentence which should have been imposed was one where the parole eligibility date was not postponed beyond the halfway mark of nine years.
- [22]The sentence was not manifestly excessive. It was a sentence for manslaughter involving a ferocious assault in the factual circumstances identified by her Honour. The Home Detention Report indicated that the applicant found it difficult to manage his emotions and had anger management deficits. The unlawful killing occurred in circumstances where the applicant was angry and had pursued the deceased in the company of Mr Davis. The applicant also had guarded prospects in relation to his rehabilitation. These are circumstances which suggest that the protection of the public, or adequate punishment, required the making of a declaration so that the applicant serve 80 per cent of the head sentence before being able to apply for parole.
- [23]Further, by reference to comparable cases such as R v Dwyer,[11] R v Hedlefs,[12] R v Dean; R v Selmes; R v Phillips[13] and R v Lawler[14], a sentence in the present circumstances of nine years with a serious violent offence declaration is well within range and cannot be considered manifestly excessive.
- Disposition
- [24]The application for leave to appeal against sentence should be refused.
- [25]BRADLEY JA: I agree with the reasons of Flanagan JA and with the order his Honour proposes.
- [26]FREEBURN J: I agree with Flanagan JA.
Footnotes
[1]An appeal against the applicant’s conviction was heard by this Court on 15 May 2023 and dismissed on 16 June 2023: R v Broadby [2023] QCA 127 (Mullins P, Morrison JA and North J).
[2]Outline of Submissions of the Applicant, paragraph 4; RB, page 216, line 1 to RB, page 217, line 26.
[3]RB, page 207, lines 8-10.
[4]RB, page 218, line 43 – page 219, line 11.
[5](2005) 228 CLR 357 at 375 [39], 378-9 [53].
[6](2014) 253 CLR 58 at 72 [34].
[7]Applicant’s Outline of Submissions, paragraph 12.
[8]Applicant’s Outline of Submissions, paragraph 12.
[9]R v McDougall & Collas [2007] 2 Qd R 87 at 96 [19] per Gerrard, Keane and Holmes JJA.
[10](2020) 4 QR 80 at [53].
[11][2008] QCA 117.
[12][2017] QCA 199.
[13][2018] QCA 124.
[14][2020] QCA 166.