Arcuri v Queensland Police Service [2026] QDC 17

DISTRICT COURT OF QUEENSLAND CITATION: Arcuri v Queensland Police Service [2026] QDC 17 PARTIES: LUCA SANTO ARCURI (appellant) V COMMISSIONER OF THE QUEENSLAND POLICE SERVICE (respondent) FILE NO/S: 2128/25 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court at Sandgate DELIVERED ON: 20 February 2026 DELIVERED AT: Brisbane HEARING DATE: 19 February 2026 JUDGE: Heaton KC DCJ ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the Appellant was sentenced in the Magistrates Court to 12 months’ imprisonment with immediate parole release with an order to pay compensation after pleading guilty to the offence of assault occasioning bodily harm in company – where the Appellant submitted that the learned magistrate erred by characterising offending as ‘vigilantism’ and overemphasising the co-offenders’ sentence – where the Appellant submitted that the learned magistrate erred by requiring him to serve time in actual custody – whether the sentence imposed was manifestly excessive – whether the magistrate did not have due regard to mitigating circumstances. LEGISLATION: Justices Act 1886 (Qld) -- 1 of 12 -- 2 CASES: Allesch v Maunz (2000) 203 CLR 172 Barbaro v The Queen [2014] 253 CLR 58 Dowden v Commissioner of Police [2023] QDC 111 McDonald v Queensland Police Service [2017] QCA 255 Postiglione v The Queen (1997) 244 CLR 462 R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489 R v Chitty; ex parte Attorney-General [2021] QCA 2 R v Ford [2011] QCA 208 R v Goodwin, Ex Parte Attorney-General (Qld) [2014] QCA 345 R v Irving [2004] QCA 305 R v Levy and Drobny; ex parte Attorney-General [2014] QCA 205 R v Lude; R v Love [2007] QCA 319 R v Stone [2010] QCA 157 R v Tupou; Ex parte Attorney-General (Qld) [2005] QCA 179 Teelow v Commissioner of Police [2009] 2 Qd R 489 COUNSEL: J P Wallace for the appellant. H M O’Brien for the respondent. SOLICITORS: Owens and Associates for the appellant. Commissioner of the Queensland Police Service for the respondent. Introduction [1] This is an appeal by the appellant against the sentence imposed upon him in the Sandgate Magistrates Court on 28 July 2025 whereby he was sentenced to 12 months’ imprisonment with immediate parole release together with an order for the payment of compensation of $1000. [2] The appellant entered a plea of guilty to the offence of assault occasioning bodily harm in company committed on 25 January 2025. [3] By notice filed on 29 July 2025, the appellant contended simply that the sentence was manifestly excessive. -- 2 of 12 -- 3 [4] The appeal is pursuant to s 222 of the Justices Act 1886 (Qld) (“JA”). Relevantly, s.222(2)(c) provides that where a defendant pleads guilty, they may appeal on the sole ground that the sentence is excessive. An appeal pursuant to s 222 is by way of rehearing on the evidence given in the proceedings before the magistrate (s.223(1)).1 The facts upon which the appellant was sentenced were agreed and set out in a schedule tendered at the hearing before the learned Magistrate. Relevant Factual Circumstances [5] In short, the circumstances of the appellant’s offending are that he was in the company of two male friends at the Blue Moon Hotel, Sandgate on the evening of 25 January 2025. One of his friends saw that the complainant was also at the hotel and brought this fact to the attention of the appellant. That was significant because, as was then known to that friend, the appellant believed that some years earlier, the complainant had raped the appellant’s sister. [6] As a consequence, the appellant and his friends, then took it upon themselves to follow the complainant as he was leaving the hotel. The complainant went out the back and down the stairs to the carpark when he was set upon by the three attackers. The complainant was first punched in the face, which caused him to stumble and drop his phone, and the defendant joined in grabbing the complainant and throwing him to the ground. The appellant and his friends then started punching and kicking the complainant and they dragged him across the ground on the bitumen causing his shirt to be torn. They were yelling at him, “You think you can rape chicks?” [7] A security guard went to intervene and pulled the assailants away from the complainant. He managed then to get to his feet and he ran back to the stairs to retrieve his phone and make his way back up the stairs. He tripped on the stairs, and he was then grabbed again, this time in a head lock by one of the appellant’s friends. Again, security staff intervened and pulled the assailant from the complainant and pushed the defendant and his friends away from the complainant. They then walked off. [8] Whilst it was accepted that one associate, Mr McNaught, delivered the first blow, the appellant was an active participant in a joint attack on a sole victim, motivated by the 1 s.223(3) JA -- 3 of 12 -- 4 appellant’s desire to mete out some summary justice because of his belief of the complainant’s wrong doing. [9] The attack was a serious one. The complainant was knocked to the ground, dragged on the bitumen, punched and kicked. It was not possible to say which of the assailants did what of the actions. In his detailed sentencing remarks, the learned Magistrate accepted that the appellant was not the principle motivator of the attack, that he did not strike the first blow, and that it was not he who put the complainant in a head lock. He also accepted that whilst kicks were delivered to the complainant, the appellant didn’t kick him in the head. [10] It was uncontroversial that this attack was motivated by the complainant’s long held grievance towards the complainant. The violence included kicks and punches delivered by the combined force of three, whilst the lone complainant was on the ground. Despite the intervention of security staff, the hostilities by the appellant and his friends towards the complainant continued. It was the intervention of the security guards that brought the violence to an end. [11] As a result of the attack the complainant suffered a number of injuries consisting of bruising to his face and hip, scratches and abrasions on his arm, shoulder, and leg. His shirt was torn and his watch damaged. In a victim Impact Statement tendered at the hearing, the wide ranging, and entirely understandable physical, phycological and social impacts of the offending were outlined. [12] A formal complaint was made to police. CCTV footage identified the appellant as one of the assailants. When confronted by the police in relation to this offending, he participated in a formal interview and relevantly admitted to having punched the complainant but he claimed a lack of detailed memory due to his alcohol consumption. He also admitted that his motivation was because of his belief that the complainant had raped his sister two years earlier. He acknowledged that it was the wrong thing to do. Relevant Principles [13] In Teelow v Commissioner of Police,2 it was said that: 2 [2009] 2 Qd R 489 at [4] -- 4 of 12 -- 5 “It is a normal attribute of an appeal by way of rehearing that the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all of the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error… On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.3 [14] Further, in McDonald v Queensland Police Service [2017] QCA 255 at [47], Bowskill J stated: “It is well established that, on an appeal under s 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the magistrate’s view. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.” [citations omitted] [15] In the absence of specific error, a court hearing an appeal of this nature should not interfere with a sentence unless it is manifestly excessive, that is, unreasonable or plainly unjust, such that it is apparent that the sentencing court has misapplied principles in the exercise of the sentencing discretion. Such a conclusion is not supported simply because an appellate court might have taken a different view as to the appropriate penalty. Instead, to succeed, an appellant must satisfy the court that the sentence imposed is outside an acceptable scope of judicial discretion. Grounds of Appeal [16] The appellant submits that the learned Magistrate did specifically err by firstly, characterising this offending as ‘vigilantism’, and secondly by placing too much weight on the sentence imposed upon the co-offender, Mr Evan McNaught. Finally, it is submitted that otherwise, the sentence is manifestly excessive in that it is plainly unreasonable and unjust, and outside the scope of appropriate penalty in all of the circumstances of this offending. [17] The appellant’s primary contention is, in essence, that the many matters in mitigation ought to have resulted in a penalty which did not involve any period of imprisonment, 3 Citing Allesch v Maunz (2000) 203 CLR 172 at 180-181. -- 5 of 12 -- 6 instead, the sound exercise of the sentencing discretion would have resulted in a period of probation, as much as 2 years, being imposed. Was this a case of ‘Vigilantism’? [18] Mr Wallace, who appears for the appellant, firstly submitted that the learned Magistrate’s characterisation of this offending as ‘vigilantism’ was an error. In discussion during the hearing however, he accepted that the term ‘vigilantism’ did appropriately reflect the nature of what was done by the appellant and his friends although he maintained that there was a relevant distinction between cases in which an assailant sought out and pursued a victim to seek revenge, as compared to the ‘happenstance encounter’ of this case. [19] Accepting that each case must be determined by reference to its particular circumstances, and that care must be employed in attaching labels, this was, in my view, appropriately regarded as an example of vigilantism. Further, this was not merely a ‘happenstance encounter’. The presence of the complainant at the hotel was brought to the attention of the appellant by a friend who knew of the enmity the appellant had for the complainant. The appellant’s group of three men, then followed after the complainant, who was then heading out to the carpark and in the process of leaving the hotel, and set upon him in a surprise attack. The motive was clearly to mete out some revenge for the perceived wrongdoing by the complainant by the infliction of physical violence to the complainant. [20] There is no basis on the material to conclude that in referring to this case as an example of ‘vigilantism’ that the learned Magistrate was erroneously regarding it as anything other than what it was. The particular circumstances of the offending were well understood and clearly articulated by him in his exchanges with the solicitor appearing for the appellant at the sentence hearing who accepted the aggravating circumstances, as well as the characterisation that it involved vigilantism. No error is disclosed by this characterisation. Did the strive for parity lead to error? [21] Secondly, the appellant submits that the Magistrate’s apparent need to maintain parity with the penalty imposed upon Mr McNaught resulted in error. The submission, as understood, developed in this way; because the Magistrate regarded the penalty -- 6 of 12 -- 7 imposed upon Mr McNaught, that is 18 months imprisonment, as relevant, in his endeavour to achieve parity, he ‘dragged up’ the penalty imposed on the appellant rather than considering the appropriate penalty in all of the circumstances of the appellant’s case. [22] It is submitted further that the specific details of Mr McNaught’s case were not apparent on the record, and whilst some detail of different features was discussed, no meaningful capacity to critically assess the circumstances of Mr McNaught’s case was available. What is apparent on the record is that Mr McNaught was sentenced not only for his participation in this attack, but also a second, quite separate assault upon another person in Fortitude Valley, and, that it was Mr McNaught who delivered the first punch to the complainant in this case, and it was he who sought to continue the physical violence after the intervention of the security staff by pursuing the complainant and placing him in a head lock. [23] Whilst it is true that the details of Mr McNaught’s case are not fully revealed in the material available on this appeal, what is clear is that the parties to this sentencing hearing knew more about his case than is discernible from reading the transcript. Importantly, it is not said that the solicitor acting for the appellant at the hearing was taken by surprise by the consideration of the penalty imposed on a co-offender to the very same offending under consideration and thereby disadvantaged in his representation of the appellant. Further evidencing no disadvantage, despite the relevance of Mr McNaught’s penalty being raised early in the hearing (and during submissions by the Prosecutor), no attempt was made to distinguish Mr McNaught’s case other then as already outlined above, and nor was any concern expressed that the limited information available prevented meaningful consideration of parity. [24] On a proper reading of the transcript of the hearing, together with the material tendered at the hearing, I am satisfied that the details of Mr McNaught’s case was relevantly understood by the parties and the relevant distinguishing features were limited to that which was the subject of discussion. [25] Subject to those distinguishing features, parity was relevant to the exercise of the sentencing discretion.4 However, the appellant submits that error is apparent by the 4 Postiglione v The Queen (1997) 244 CLR 462 at 472-473 -- 7 of 12 -- 8 Magistrate using the penalty imposed upon Mr McNaught “as a notional starting point, or at least a point of reference” for the determination of a just penalty for the appellant. Whilst I can accept that that the Magistrate had an eye on the penalty imposed on Mr McNaught when considering the appropriate sentence for the appellant, that was not in any impermissible or erroneous way. The detailed and carefully expressed sentencing remarks reveal the very many and relevant considerations which were considered when determining the appropriate sentencing response to the appellant’s serious criminal conduct. [26] Again, I am unable to find any error in the manner in which the issue of parity with the sentence imposed upon Mr McNaught featured in the determination of the appropriate penalty for the appellant. Was the penalty manifestly excessive? [27] Finally, the appellant submits that error is demonstrated by the imposition of a penalty of imprisonment, even though accompanied by immediate release to parole, when proper regard is had to all of the appellant’s personal circumstances. In effect, it was submitted that the accumulation of personal circumstances were such that a non- custodial penalty, such as probation, was dictated, together with the additional leniency of not recoding a conviction. It is expressly submitted that the imposition of a term of imprisonment, even though with immediate release to parole, rendered the penalty manifestly excessive. [28] The appellant was 19 years of age at the time of the offending and 20 at sentence. He has no history of prior offending. He had the benefit of an unremarkable upbringing, was educated to year 11, and thereafter commenced an apprenticeship as a carpenter. He stopped that to pursue a career as a real estate agent, and was currently undertaking study to achieve the necessary qualifications whilst working as a labourer in the meantime. Whilst it was submitted that a conviction would operate as an impediment to his gaining the necessary qualification, no formal material was placed before the Magistrate to support that submission or to clearly identify the actual consequences that a conviction might have on his prospects of gaining a real estate licence. Regardless, whilst that jeopardy was a relevant factor for consideration, and it was, ultimately it is a decision for another agency exercising their own decision making power, and cannot overcome the need for an otherwise appropriate sentence. -- 8 of 12 -- 9 [29] In addition, the appellant was not the primary instigator of the violence against the complainant, and he made relevant admissions, demonstrated insight and remorse for his participation in it, and sought, by a mental health plan and attendance at counselling, to address the factors which led to his offending conduct – that is, impulse control, anger management and alcohol use. His prospects of rehabilitation were good, and, it was submitted, a penalty which enabled him to remain in the community and continue on his path to living life as a law abiding citizen would benefit not only him but the broader community. [30] Relevant and detailed submissions were made on his behalf as well as detailed submissions in relation to other cases said to provide support for the sentencing outcome contended for. [31] Accepting without hesitation that all of those matters were highly relevant to the exercise of the sentencing discretion, they are only part of the matters for consideration. The mitigating matters were clearly understood by the sentencing Magistrate. There is no submission now that anything relevant was overlooked, or something irrelevant taken into account. Instead, it is the effect of those matters which is the focus of the submissions made in support of this appeal. The appellant contends essentially that they ought to have resulted in a non-custodial penalty. [32] I am unable to accept that submission. It was properly accepted by the solicitor acting for the appellant that the sentencing discretion was a wide one which included imprisonment. The broadly comparable cases placed before the court support the correctness of that concession. The sentencing Magistrate analysed the cases in which non-custodial penalties were imposed5 and drew distinctions between those cases and this. He clearly articulated his consideration of the relevant principles and the relevant matters advanced in mitigation, including expressing the need for care given the young age of the appellant. [33] The offending was rightly considered to be serious. The matters in mitigation were not such as to necessarily displace the serious circumstances of the offending which called for a strong sentencing response. The complainant was simply another patron at the hotel. There was no immediately preceding confrontation giving rise to 5 Particularly R v Ballantyne ; District Court 26 April 2013 (Judge Farr SC); and R v Splatt District Court 22 August 2022 (Judge Cash QC) -- 9 of 12 -- 10 heightened emotions and a lack of judgement or control by an immature offender. This was a case in which the appellant joined in a cowardly, surprise, revenge attack, with two others, to inflict significant violence upon the complainant in a public place. Offending of this nature can undermine the community’s sense of safety when socialising in public places. There is a powerful public interest in stopping offending of this nature and the Courts must do what they can to send a clear message that violence such as this will not be tolerated and those who commit offences of violence such as this, will be met with real penalties. [34] Much is rightly made of the appellant’s youth, good background and promising future in submissions before me. It is highly relevant, and it was clearly considered by the sentencing Magistrate. However, cases of this sort, involving serious violence, commonly involve young men such as the appellant, who are intoxicated and, at least at the time, indifferent to the consequences of their violent attack. Like the appellant, many have no, or limited, criminal history and because of their young age, have good prospects of rehabilitation. However, those matters cannot displace, in an appropriate case, the need for public deterrence in the penalties imposed.6 I adopt what was observed by McPherson JA in the case of R v Irving7 that it would be wrong to assume that youth, good background and promising future prospects clothes an offender with some immunity from an appropriately deterrent sentence involving an element of imprisonment in cases of serious violence. It must not be overlooked that given that this was an offence of violence, a sentence of imprisonment is not a sentence of last resort. [35] The matters in mitigation promoted by the appellant, were the subject of fulsome submissions in the court below and were, in my view, appropriately considered by the sentencing Magistrate. The sentencing remarks reveal a thorough and carefully considered exercise of the sentencing discretion. All that should be, was appropriately taken into account. No irrelevant matters were considered. The appropriate penalty? [36] The difficulty for the appellant in this appeal is that the circumstances of the offending were particularly serious and involve an example of gratuitous violence delivered by 6 See R v Levy and Drobny; ex parte Attorney-General [2014] QCA 205, at [77]; R v Chitty; ex parte Attorney-General [2021] QCA 2 7 [2004] QCA 305 -- 10 of 12 -- 11 a surprise attack by 3 three people upon the sole complainant. That the appellant believed the complainant to have committed an offence, even a serious one, against his sister two years earlier does little to mitigate the seriousness of his violent response upon seeing the complainant simply enjoying the social opportunity of the Blue Moon Hotel. The attack was determined and protracted. It was necessary for security staff to intervene to bring it to an end. The injuries suffered by the complainant were luckily, confined to bruises and abrasions, but the psychological impacts were more enduring. [37] In the recent case of R v Chitty; Ex parte Attorney-General (Qld),8 the court observed: “Sentencing of relatively young offenders generally gives rise to the importance of considerations of rehabilitation. However, for some time Courts have recognised and stressed the importance of deterrence, both general and personal, in the sentencing of young men for serious acts of public violence upon innocent members of the community.9 The need for such deterrence has been stressed, notwithstanding that the offending involved a single punch from remorseful young men, who pleaded guilty and had promising rehabilitative prospects.”10 Conclusion [38] As noted above, the contention of the appellant in this appeal is that the matters in mitigation were such that a sentence of imprisonment was outside the scope of the sound exercise of the sentencing discretion. That contention must be rejected. [39] In all of the circumstances of this case, a need for personal deterrence remained, as did the need for general deterrence and denunciation. Public violence, leading to significant consequences to innocent members of the community, requires a strong sentencing response to deter likeminded individuals. A sentence involving imprisonment is a powerful means of providing that deterrence and the requisite denunciation for such criminal conduct. [40] I am unable to conclude that the sentencing discretion miscarried in this case. In my view, the sentence of 12 months imprisonment appropriately moderated by an order 8 [2021] QCA 2 9 Citing R v Tupou; Ex parte Attorney-General (Qld) [2005] QCA 179; R v Bryan; Ex parte Attorney-General (Qld) (2003) 137 A Crim R 489; 10 Citing R v Ford [2011] QCA 208 at [22]. -- 11 of 12 -- 12 for immediate release on parole was an appropriately stern sentencing response to the particular offending involved. Whilst having proper regard to the role of comparable sentences in the sound exercise of a sentencing discretion,11 the cases to which I and the court below were referred support the level of penalty imposed here12. [41] In my review of the whole of the evidence now before me in this appeal, I am unable to conclude that the sentence imposed in the Magistrates Court on 28 July 2025 by the learned magistrate is the result of some legal, factual or discretionary error. For the reasons articulated above, the offending was sufficiently serious as to justify a sentence which involved a penalty of imprisonment, despite the matters personal to the appellant and in mitigation of penalty. No errors are demonstrated, and the sentence is not manifestly excessive. [42] The appeal is dismissed. 11 Barbaro v The Queen [2014] 253 CLR 58 at [34]; R v Goodwin, Ex Parte Attorney-General (Qld) [2014] QCA 345. 12 R v Lude; R v Love [2007] QCA 319; Dowden v Commissioner of Police [2023] QDC 111; R v Irving [2004] QCA 305; R v Stone [2010] QCA 157; R v Milne, District Court 8 February 2023 (Judge Lynham); R v Ballantyne ; District Court 26 April 2013 (Judge Farr SC); and R v Splatt District Court 22 August 2022 (Judge Cash QC) -- 12 of 12 --