Escott v Queensland Police Service [2025] QDC 201

DISTRICT COURT OF QUEENSLAND CITATION: Escott v Queensland Police Service [2025] QDC 201 PARTIES: STEPHAN GIDEON ESCOTT (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO: APPEAL NO: DC 86/25 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court, Cairns DELIVERED ON: 11 December 2025 DELIVERED AT: District Court, Cairns HEARING DATE: 11 December 2025 JUDGE: Morzone KC DCJ ORDER: 1. The appellant has leave to file the appeal out of time. 2. Appeal allowed. 3. The sentence and orders of the Magistrates Court made in Cairns on 19 June 2025 are varied to the extent that: (a) For the charge 14 of assault occasioning bodily harm whilst armed, a sentence of 2 years and 3 months imprisonment is substituted in lieu of the sentence of 2 years and 6 months imprisonment. (b) The parole release date of 1 February 2026 is substituted in lieu of 1 March 2026. 4. The other sentences and orders are affirmed. CATCHWORDS: CRIMINAL LAW – APPEAL AGAINST SENTENCE – ERROR OF LAW – review pursuant to s 222 Justices Act 1886 (Qld) – extension of time – whether the head sentence of 2.5 years carried by the most serious charge of assault occasioning bodily harm whilst armed, is excessive beyond the permissible range – whether the learned magistrate erred -- 1 of 16 -- 2 by using R v Namai [2014] QCA 213 for a different offence of wounding as a comparable authority – whether the learned magistrate gave undue weight to the criminal history – resentence. LEGISLATION: Justices Act 1886 (Qld) s 222, 222(2)(c), 223(1), 224(1)(a) & 227 Penalties and Sentences Act 1992 (Qld) s 9(1), 9(2A), 9(3), 9(10) & (11) CASES: AB v R (1999) 198 CLR 111 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Allesch v Maunz (2000) 203 CLR 172 Dinsdale v The Queen (2000) 202 CLR 321 Dwyer v Calco Timbers (2008) 234 CLR 124 Forrest v Commissioner of Police [2017] QCA 132 Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Kentwell v R (2014) 252 CLR 601 Lovell v Lovell (1950) 81 CLR 513 Lowe v The Queen (1984) 154 CLR 606 McDonald v Queensland Police Service [2017] QCA 255 Norbis v Norbis (1986) 161 CLR 513 Nguyen v The Queen (2016) 256 CLR 656 R v Bennett [2007] QCA 324 R v Cooney [2019] QCA 166 R v Lemass (1981) 5 A Crim R 230 R v McDonald [2005] QCA 383 R v McIntosh [1923] St R Qd 278 R v Morse (1979) 23 SASR 98 R v Namai [2014] QCA 213 R v Nagy [2004] 1 Qd R 63 R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 R v Tait [1999] 2 Qd R 667 Teelow v Commissioner of Police [2009] QCA 84 Veen v The Queen [No 2] (1988) 164 CLR 465 Warren v Coombes (1979) 142 CLR 531 White v Commissioner of Police [2014] QCA 121 COUNSEL: Reece G for the appellant. McNeale H for the respondent. SOLICITORS: The Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd for the appellant. The Office of the Director of Public Prosecutions for the respondent. -- 2 of 16 -- 3 Summary [1] On 19 June 2025, the appellant was convicted on his own plea of guilty in the Magistrates Court held in Cairns, of 14 separate charges comprising various offences, including unlawful possession of drugs and things, driving, property, unlawful use of cars, nuisance, assault occasioning bodily harm whilst armed; and he was sentenced to an effective 2 years and 6 months of imprisonment, with a parole release date set for 1 March 2026 including 48 days of declared presentence custody, and forfeiture of a knife, drugs, and drug related property. [2] The appellant now seeks an extension of time to appeal and appeals the overall head sentence of two and a half years imprisonment imposed on the most serious offence in charge 14 of assault occasioning bodily harm whilst armed because it is excessive as the learned magistrate used a comparative authority that was distinguishable, and placed too much weight on the appellant’s criminal history. [3] The application for extension of time to appeal is not opposed, but the respondent opposes the merit of the appeal and argues that the sentence was within the permissible range for concurrent sentences for the whole offending. [4] On my review, I am persuaded that the sentence imposed is excessive, generally, or as a result of an error. In my respectful view, the case of R v Namai [2014] QCA 213 provides limited and less comparative assistance in the exercise of the sentencing discretion in this case than the more comparative cases provided in the appeal. The learned sentencing magistrate’s remarks tend to show that he nevertheless allowed consideration of Namai as a yardstick to guide or affect the proper exercise of the sentencing discretion, but I’m not persuaded that his Honour allowed the criminal history to overwhelm his sentencing discretion. Applying the totality principle guided by the most closely comparable cases, I have concluded that a sentence in the upper end of the range of 2 years and 3 months reflects the overall criminal conduct in the charges, and the original sentence of 2 years and 6 months imprisonment is excessive and outside the permissible range. [5] Accordingly, I allow the appeal, set aside the sentence of 2 years and 6 months imprisonment for charge 14 of assault occasioning bodily harm whilst armed, and substitute 2 years and 3 months imprisonment for that charge. The parole release date will be altered commensurately to be 1 February 2026, being one-third of the total period of imprisonment sentence. Extension of Time [6] Pursuant to s 222(1) of the Justices Act 1886 (Qld), the applicant had one month after the date of the order in which to appeal. Under s 224(1)(a), a District Court Judge may, on the application of a party, extend the time for filing a notice of appeal. [7] This appeal was filed 32 days out of time on 18 August 2025, and the applicant applies for an extension of time. [8] In R v Tait,1 the Court of Appeal explained the considerations relevant to granting an extension of time at [29] as follows: 1 R v Tait [1999] 2 Qd R 667. -- 3 of 16 -- 4 “... the court will examine whether there is any good reason shown to account for the delay and consider overall whether it is in the interests of justice to grant the extension. It may involve some assessment of whether the appeal seems to be a viable one. It is not to be expected that in all cases the court will be able to assess whether the prospective appeal is viable or not, but when it is feasible to do so, the court will often find it appropriate to make some provisional assessment of the strength of the applicant’s appeal, and take that into account in deciding whether it is a fit case for granting the extension. Other factors include prejudice to the respondent, but in the case of criminal appeals this is not often a live issue. Another factor is the length of the delay it being much easier to excuse a short than a long delay.” [9] The appellant’s lawyers explain that the delay resulted from a clerical error whereby correspondence sent to the appellant in prison with the relevant paperwork to appeal had an incorrect name on it and had to be sent again. The respondent does not oppose the application to extend time to appeal. There was no prejudice claimed by the respondent and my provisional assessment was that there was merit in the appeal and I have dealt with the appeal grounds below. [10] In my view, the applicant has shown sufficient reason for the delay and has demonstrated that it would be in the interests of justice to grant the extension of time sought, having regard to the issues raised in the appeal. I allow the application for leave to extend time. [11] The parties have agreed that the appeal hearing should proceed and be determined in these reasons. Appeal [12] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). [13] Pursuant to s 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave if there are special grounds for giving leave. [14] The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.2 Its function is to consider each of the grounds of appeal, having regard to the evidence, and determine for itself the facts of the case and the legal consequences that follow from such findings.3 In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.4 [15] By operation of s 222(2)(c), the appellant can “only appeal under this section on the sole ground that a fine, penalty, forfeiture or punishment was excessive or inadequate”, that is, “beyond the acceptable scope of judicial discretion” or “so 2 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police [2017] QCA 132, 5 and McDonald v Queensland Police Service [2017] QCA 255 at [47]. 3 White v Commissioner of Police [2014] QCA 121 at [5]-[8]. 4 White v Commissioner of Police [2014] QCA 121 at [5]-[8]; Forrest v Commissioner of Police [2017] QCA 132, 5 & 6; McDonald v Queensland Police Service [2017] QCA 255 at [47]. -- 4 of 16 -- 5 outside the appropriate range as to demonstrate inconsistency and unfairness”.5 To succeed, the appellant must establish some legal, factual or discretionary error.6 Such an error may be specifically identifiable, but an otherwise undiscernible error may be inferred from the imposition of an excessive or inadequate sentence. [16] The decisions of House v The King7 and Kentwell v R8 distinguish cases of specific error and indiscernible excess or inadequacy. [17] The High Court held in House v The King9 that: “It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” [18] The High Court in Kentwell v R10 held: “In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.” [19] In the case of specific error, the appellate court’s power to intervene is enlivened and it is duty-bound to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed.11 By contrast, 5 R v Morse (1979) 23 SASR 98; R v Lemass (1981) 5 A Crim R 230; R v McIntosh [1923] St R Qd 278; Lowe v The Queen (1984) 154 CLR 606. 6 Allesch v Maunz (2000) 203 CLR 172 at [22] – [23] followed in Teelow v Commissioner of Police [2009] QCA 84 at [4]; White v Commissioner of Police [2014] QCA 121, [8], McDonald v Queensland Police Service [2017] QCA 255 at [47]; contrast Forrest v Commissioner of Police [2017] QCA 132 at 5. 7 House v The King (1936) 55 CLR 499 at 504 and 505. 8 Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). 9 (1936) 55 CLR 499 at 504 and 505. 10 Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). 11 Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R (1999) 198 CLR 111 at [130] per Hayne J (minority). -- 5 of 16 -- 6 absent identifiable specific error, the appellate court ought to only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.12 Even if the appellate court finds that the sentence was at the extreme end of a permissible range, or has a different opinion about the way in which the discretion should be exercised, these are not sufficient justifications for review; it must be shown that the discretion miscarried, resulting in an excessive sentence.13 In that context, it may be vitiated by an error of principle, or by a failure to appreciate a salient feature, or there is otherwise a miscarriage of justice.14 Is the head sentence of 2.5 years carried by the most serious charge of assault occasioning bodily harm whilst armed, excessive beyond the permissible range? [20] The appellant pleaded guilty to 14 offences between February 2025 and May 2025 being: [21] The sentence proceeded on an agreed statement of facts which I summarise as follows: [22] Charge 1 - Possessing dangerous drugs: At 7:50am on 21/02/2025, police responded to a disturbance at 324-328 Sheridan Street, Cairns North. They observed the appellant and two other males in a stairwell, with the appellant smoking from a water 12 House v The King (1936) 55 CLR 499, 504 and 505, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519, and Kentwell v R (2014) 252 CLR 601, [35], adopting AB v R (1999) 198 CLR 111, [130] per Hayne J (minority). See also Dinsdale v The Queen (2000) 202 CLR 321 at 325 per Gleeson CJ and Hayne J, also applied by Chesterman J in R v Perini; ex parte A-G (Qld) (No 2) [2011] QCA 384 at [54]. 13 Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ, 533-534 per Kitto J; see also Gronow v Gronow (1979) 144 CLR 513 at 519, 525, 534 and 537. 14 House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519. Charge Offence Committed 1 Possession of Dangerous Drugs 21/02/2025 2 Possession of Utensils or Pipes that were for use 21/02/2025 3 Possession of a knife in a public place 21/02/2025 4 Stealing 23/02/2025 5 Stealing 23/02/2025 6 Drive Motor Vehicle whilst over the middle but not over the High alcohol limit – whilst on a learner/probationary/provisional licence 28/03/2025 7 Driving without a licence – Repeat Offender 28/03/2025 8 Unlawful Use of a Motor Vehicle 28/03/2025 9 Commit Public Nuisance 12/04/2025 10 Stealing 12/04/2025 11 Did Drive / in Charge of / or attempts to put in motion any horse/animal/vehicle (other than a motor vehicle) under the influence 12/04/2025 12 Rider of bicycle fail to wear approved helmet 12/04/2025 13 Riding at night or period of reduced visibility – front flashing or steady white light 12/04/2025 14 Assault Occasioning Bodily Harm whilst armed 02/05/2025 -- 6 of 16 -- 7 pipe emitting a burnt cannabis smell. Police detained them for a search. A clip seal bag with less than 1 gram of cannabis was found in one associate's front left pocket. The appellant admitted it was his, stating he panicked and handed it to the associate to hide from the police. Charge 2 - Possess utensils or pipes etc for use: On 21/02/2025, the appellant admitted the water pipe he was observed using to smoke cannabis belonged to him. [23] Charge 3 - Possession of a knife in a public place or a school: On 21/02/2025, police found a knife (approximately 30cm long with a slightly curved blade and black tape on the handle) under a blue shirt next to where the appellant was sitting. The appellant admitted it was his, stating it was for fishing and opening shellfish on the esplanade. [24] Charge 4 – Stealing: At approximately 7:05pm on 23/02/2025, the appellant entered Liquorland at Dunwoody's, 317 Sheridan Street, Cairns. He walked past the cashier to the liquor section, picked up a 700ml Bundaberg Rum bottle and a 1L Bundaberg Rum bottle, then exited past the cashier without attempting to pay. The incident was captured on CCTV. [25] Charge 5 – Stealing: At approximately 8:30pm on 23/02/2025, the appellant and a co- offender entered Liquorland Sheridan Street at 213 Sheridan Street, Cairns City. They selected four bottles of liquor from the spirits aisle, then walked to the exit. The store manager directed them to the counter, but they bypassed the manager and left without paying. At 8:40pm, police were flagged down by the manager on Sheridan Street, given descriptions, and located the appellant on Digger Street in possession of three bottles of liquor. [26] Charge 6 - Drive motor vehicle tram, train or vessel whilst over the middle alcohol limit but not over the high alcohol limit not holder of licence or learner & Charge 8 - Unlawful use of motor vehicles aircraft or vessels – use: On 28/03/2025, a stolen white 2012 Mazda BT-50 was taken between 25-28 March 2025 from Warrego Street, Parramatta Park, using a spare key inside. At 8:01am on 28 March, police responded to reports of a vehicle doing donuts in a park at Ravizza Close, Edmonton. They found the vehicle parked in a driveway and were directed by a council worker to the appellant nearby. The appellant initially gave a false name, then admitted driving from Cairns City but couldn't identify the owner. A roadside breath test was positive; a station test showed 0.118 grams of alcohol in 210 litres of breath. He had no lawful reason for driving. The owner confirmed the vehicle was stolen without permission. [27] Charge 7 - Driving of motor vehicle without a driver licence Repeat offender: As at 28/03/2025, the appellant did not hold a current license and was a repeat offender. His license was last disqualified in 2016 for 24 months, and he hadn't renewed it since. He provided no lawful reason for driving. [28] Charges 9 - Commit public nuisance & Charge 10 - Stealing: At approximately 4:45am on 12/04/2025, there was a disturbance involving about 15 people fighting at the Lake Street bus stop between Aplin and Shields Streets, Cairns City. CCTV showed the appellant at the bus stop, approached by security, moving to a carpark, removing his shirt, and fighting another male. He then took a bicycle from the bus stop, moved it to his group, returned to the carpark (off-camera), collected the bicycle while yelling, and rode away upon seeing police at 4:55am. -- 7 of 16 -- 8 [29] Charge 11 - Did drive or attempts to put in motion or in charge of horse/animal/vehicle whilst UIL: On 12/4/2025, the appellant rode the bicycle westbound on Aplin Street, then between Aplin and Grafton Streets, evading a marked police vehicle. At 4:56am on Aplin Street, police with lights and sirens approached; he tried to flee but was apprehended. He showed signs of intoxication (bloodshot eyes, slurred speech, alcohol smell on breath) and was unsteady on CCTV. A breath analysis at 5:32am showed 0.100 ml of alcohol in 210L of breath; he received a certificate copy. [30] Charge 12 - Rider of bicycle fail to wear approved helmet: Throughout the CCTV footage of 12/04/2025, the appellant did not wear an approved helmet while operating the bicycle. [31] Charge 13 - Riding at night or period of reduced visibility - front flashing or steady white light: At 4:55am, on 12/04/2025, the appellant operated the bicycle in reduced visibility without the required front flashing or steady white light. Inspection confirmed no proper lights or reflectors; he provided no lawful reason. [32] Charge 14 - Assaults occasioning bodily harm whilst armed/in company: At about 12:30 am on 2/5/2025, on Sheridan Street in Cairns North just past the kebab shop, the appellant, who was intoxicated, approached the victim who he knew and called out to him. The victim walked away and ignored him. The appellant then got in front of the victim, who told the appellant, “I don’t like people with alcohol smell.” The appellant adopted a fighting stance, but the victim again walked away. The appellant threw a punch at the victim, and the victim punched him back, knocking the appellant to the ground. The appellant produced a large kitchen knife and chased the victim, who fled across the road. The victim fell to the ground, where the appellant approached and held the knife to his neck. Other people intervened, and both men walked back to the kebab shop together. Once there, the appellant again started to pick a fight with the victim. The victim punched the appellant in pre-emptive self- defence, knocking him over. The appellant brandished the knife once more, and the victim fled again but fell over a second time. The appellant then slashed the victim across the cheek with the knife, causing a 5 cm gash to his face. [33] The prosecutor described a pattern of offending that included minor drug and utensil matters, possession of a knife in public, two separate thefts of liquor, unlawful use of a stolen motor vehicle together with drink-driving at 0.118 and driving while unlicensed, and a cluster of public-nuisance, stealing and summary charges that arose from an intoxicated fight in the Cairns city area during which the appellant rode away on a bicycle. She submitted that by far the most serious matter was the assault occasioning bodily harm while armed with a knife on 2 May 2025. The appellant and the victim were both from Aurukun and knew of each other. After a verbal exchange, the heavily intoxicated appellant threw the first punch. When the victim fought back and knocked him down, the appellant produced a knife, held it to the victim’s throat until bystanders intervened, and briefly apologised. Moments later, however, he attacked again and slashed the victim across the left cheek, causing a five-centimetre facial laceration and a laceration to the tongue. The prosecutor emphasised the appellant’s fourteen-page criminal history, which contained previous convictions for assault, serious assault and public nuisance offences, together with a five-page traffic record that included earlier disqualified-driving and drink-driving entries. She highlighted the aggravating circumstance that the appellant had been found in -- 8 of 16 -- 9 possession of a knife in public in February and had then used one to inflict injury only three months later. The violence had occurred in public, the parties might encounter each other again, and the community required protection from knife violence. Relying on the Court of Appeal decision in R v Namai, in which a sentence of two and a half years’ imprisonment had been upheld for a single stab wound that partially collapsed the complainant’s lung, she accepted that the injury in Namai was more serious but noted that the present offence carried a higher maximum penalty of ten years. In the circumstances, she submitted that actual imprisonment was the only appropriate penalty. She urged the magistrate to impose a head sentence on the assault occasioning bodily harm while armed of not less than two years and up to two and a half years (incorporating a modest uplift for the additional offending), with shorter concurrent sentences on the remaining charges, fines or no further punishment for the minor matters, mandatory cumulative driving disqualifications, forfeiture of the drug utensils, and a parole release date after one-third of the head sentence had been served. [34] The appellant’s solicitor provided context and mitigation for each episode of offending. For the earliest charges in February, when police located cannabis, a water pipe and a knife, Mr Escott had been homeless and using cannabis to cope; the knife, he said, was for fishing along the Esplanade, and he had nowhere else to keep it. The two liquor thefts shortly afterwards had occurred during the same period of homelessness when he felt he needed alcohol to manage his situation. In relation to the March driving offences, he had received the car keys in what he believed was a legitimate swap and had failed to make proper inquiries about ownership; he offered no excuse, however, for driving while over the limit or while unlicensed. The April public-nuisance and bicycle-theft charges arose, he said, when he intervened to protect his cousin who was being assaulted; in his intoxicated state, he made a series of poor decisions, including riding away on what he mistakenly thought was his cousin’s bicycle. Regarding the May assault, the appellant’s solicitor explained that the appellant did not personally know the victim but was aware of his reputation in the Aurukun community as a “sex pest.” On the night in question, the victim had made inappropriate comments toward the appellant’s girlfriend, and the heavily intoxicated Mr Escott had reacted violently. Although he apologised at one point during the incident, the attack continued. She told the court that Mr Escott was thirty- two years old, the father of two-year-old twins who lived in Aurukun with their mother, and that he was deeply affected by the separation and by missing his children while in custody. He had begun working as a cleaner inside the prison and intended, upon release, to obtain labour in Cairns, live with his girlfriend in Woree, and provide financially for his children. The appellant’s solicitor distinguished Namai on the basis that the injury there had been life-threatening and required a chest drain, whereas the present facial laceration and tongue injury, although undoubtedly serious, were of a different order. While accepting that a term of imprisonment was within range, she submitted that a head sentence of twelve months on the assault occasioning bodily harm while armed, with lesser concurrent terms on the other charges and parole release after one-third, would be an appropriate outcome, taking into account the forty-eight days already spent in presentence custody. [35] The learned magistrate began his sentencing remarks by acknowledging the appellant’s early guilty pleas to all charges, noting that this entitled him to a significant reduction in penalty and would be reflected in both the head sentence and the parole release date. His Honour then summarised the appellant’s course of offending over more than two months, describing it as escalating in seriousness. It -- 9 of 16 -- 10 began with possession of cannabis, a water pipe, and a 30-centimetre knife in public on 21 February 2025, continued with two thefts of liquor, unlawful use of a stolen motor vehicle while unlicensed and heavily intoxicated (0.118), and a public- nuisance incident on 12 April 2025 involving a fight in Lake Street and the stealing of a bicycle. The magistrate regarded the final offence on 2 May 2025 – assault occasioning bodily harm while armed with a knife – as markedly the most serious. He outlined the facts in detail: the appellant had initiated the confrontation, chased the fleeing victim while brandishing a large kitchen knife, placed the knife against the victim’s throat (only stopped by bystanders), briefly apologised, then renewed the attack, kicking the victim while he was on the ground and slashing him across the face, causing a laceration to the cheek and tongue. The magistrate emphasised that the victim had repeatedly tried to escape and had only struck the appellant in self- defence. [36] The learned magistrate described the overall pattern of offending as protracted and escalating, involving repeated public disorder and culminating in a persistent and dangerous knife attack on a victim who clearly wished to avoid any fight. [37] He noted the appellant’s significant criminal history for violent offending (for which imprisonment had previously been imposed) and prior convictions for unlawful use of motor vehicles, although the latter were somewhat dated. Whilst the learned magistrate found the Court of Appeal decision in R v Namai of assistance, he noted that Namai had little or no relevant history, whereas the appellant’s violent record was an aggravating feature that distinguished the two cases. [38] His Honour stated that the use of a knife in public to inflict injury was conduct the court must denounce, and that both general and specific deterrence were important considerations. He expressly accepted the prosecutor’s submitted range of two to two- and-a-half years as appropriate and rejected the defence submission of twelve months. He regarded the assault occasioning bodily harm while armed as a serious example of its type and considered that a head sentence must also reflect the totality of the appellant’s offending over the preceding months. [39] Accordingly, the learned magistrate imposed the following sentences: Charge Offence Sentence 1 Possession of Dangerous Drugs Not Further Punished 2 Possession of Utensils or Pipes that were for use Not Further Punished 3 Possession of a knife in a public place 3 Months imprisonment 4 Stealing 3 Months imprisonment 5 Stealing 3 Months imprisonment 6 Drive Motor Vehicle whilst over the middle but not over the High alcohol limit – whilst on a learner/probationary/provisional licence Not Further Punished Disqualification of 3 months 7 Driving without a licence – Repeat Offender Not Further Punished 8 Unlawful Use of a Motor Vehicle 6 Months imprisonment 9 Commit Public Nuisance 3 Months imprisonment 10 Stealing 3 Months imprisonment -- 10 of 16 -- 11 [40] His Honour declared 48 days of pre-sentence custody as time served, disqualified the appellant from holding or obtaining a driver’s licence for a total of four months (three months and one month, cumulative), and ordered forfeiture of the seized knife and drug utensil. To reflect the early guilty pleas, parole release was fixed at the one- third mark, resulting in a parole release date of 1 March 2026. [41] The appellant argues that the overall head sentence of two and a half years imprisonment imposed on the most serious offence in charge 14 of assault occasioning bodily harm whilst armed because the sentence is impermissibly excessive because the learned magistrate used a comparative authority that was distinguishable and placed too much weight on the appellant’s criminal history. [42] The application for extension of time to appeal is not opposed, but the respondent opposes the merit of the appeal and argues that the sentence was within the permissible range for concurrent sentences for the whole offending. Did the learned magistrate err by using R v Namai [2014] QCA 213 for a different offence of wounding as a comparable authority? [43] Manifest excess may be exposed by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases. [44] The appellant contends that the learned magistrate erred in the exercise of the sentencing discretion by using the decision of R v Namai concerning a different offence of wounding as a comparable authority to guide or affect him. He argues that the Namai is distinguishable and unreliable as the antecedents, offence, and conduct are completely different. [45] The respondent contends that his Honour was entitled to use the decision of Namai as assistance in determining an appropriate penalty and that no error was made in the sentencing discretion, given his regard given to the distinguishing features. [46] In Namai, the 28 year old appellant, who had a limited criminal history, was sentenced for the offence of unlawful wounding to 30 months imprisonment with parole release after serving one third. After initially fighting with her sister, the appellant got a knife and stabbed her sister’s chest, resulting in a penetrating wound, which caused the partial collapse of a lung and required draining. The appellant pleaded guilty to the charge of unlawful wounding on the day of the trial as an alternative to a charge of grievous bodily harm. [47] It seems to me that the learned magistrate was alert to the distinguishing features of Namai compared to the appellant’s offending. He identified Namai involved a different offence of unlawful wounding, that the injury in Namai was more 11 Did Drive / in Charge of / or attempts to put in motion any horse/animal/vehicle (other than a motor vehicle) under the influence Not Further Punished 12 Rider of bicycle fail to wear approved helmet Not Further Punished 13 Riding at night or period of reduced visibility – front flashing or steady white light Not Further Punished 14 Assault Occasioning Bodily Harm whilst armed 2 years 6 months imprisonment -- 11 of 16 -- 12 significant, and contrasted with the appellant’s unfavourable antecedents, especially his more serious criminal history. Even so, in my respectful view, these distinguishing features (including the different offending with a lower maximum penalty) are so significant as to dilute the relatively comparable value of Namai and render it so limited and of less assistance in the exercise of the sentencing discretion in this case than the cases provided on appeal (discussed below). The learned sentencing magistrate’s remarks tend to show that he nevertheless allowed consideration of Namai to guide or affect the proper exercise of the sentence discretion. Unfortunately, the learned magistrate was not assisted with any other comparative cases. [48] Whilst analysis of closely comparable cases often provides valuable guidance, those proffered, here and below, have relative comparative value depending on their age, offender’s idiosyncratic antecedents, criminal history, nature and seriousness of the offending involving differing aggravating features, prevalence, and applicable maximum penalties at the times they were decided. They must be considered in the context of the different combination, nature and seriousness of the offending compared to the appellant’s offending. Ultimately, the appropriate sentence will necessarily depend on the particular circumstances of the offending and the degree of culpability of the appellant, his particular circumstances and the combination of offences. His offending occurs against a background of a violent history, and the gravamen of his offending is found in the circumstances of the assault occasioning bodily harm whilst armed. Matters of personal and general deterrence are particularly relevant. The court must also look at the totality of the appellant’s criminal behaviour and ask itself what is the appropriate sentence for all the offences, was it just and appropriate pursuant to s 9 of the Act. [49] The appellant contends for a head sentence of 2 years imprisonment as the appropriate penalty, uplifted from 12 to 18 months, which might apply to assault occasioning bodily harm whilst armed if considered alone. He relies upon the comparative cases of R v Bennett [2007] QCA 324 and R v McDonald [2005] QCA 383. [50] In Bennett, the 26-year-old appellant plead guilty to an assault occasioning bodily harm whilst armed for a punch whilst holding a pint beer glass which caused superficial abrasions and scratches to the ear. He was intoxicated and had been abusing patrons at the premises. He was sentenced on the basis that he intended only to punch but incidentally had the glass in his hand. He had a relevant dated history for violence, being two prior convictions for common assault, and an assault of a sexual nature, but no other offences of significance. It was determined that 18 months imprisonment was appropriate and that he was required to serve the 4 months imposed by the original sentencing Judge. In discussion, it was confirmed that the usual range for these types of assaults is 1-3 years imprisonment. [51] It seems to me that the appellant’s conduct in the charge of assault occasioning bodily harm whilst armed is more serious, involving persistent attempts to engage in a fight with the complainant, deliberately arming himself with a knife, holding the knife against the throat of the complainant and an eventual slashing of his face resulting in injury. The appellant has a relevant and significant criminal history of violence, elevating the need for personal deterrence in the sentencing. -- 12 of 16 -- 13 [52] In McDonald, the 46-year-old appellant received an effective sentence of 15 months imprisonment to be suspended after serving 5 months for a period of 2 years for one count of assault occasioning bodily harm and one count of assault occasioning bodily harm whilst armed against the same complainant. He had prior convictions for drug offences but none for violence. The offending involved an argument between the pair over something the appellant had said. Both were intoxicated at a work function. The first assault was a wrestle where the appellant ended on top of the victim and then scratched his face. Police were called and attended but took no action. The second assault occurred about 30 minutes later after the appellant returned to the venue with a bottle of alcohol and hit the victim’s head, causing a cut above the eye that required internal and external stitches. The victim also suffered headaches and blurred vision. The appellant provided good references, work history, family circumstances, and no relevant of criminal history, which was balanced against the attack of an unsuspecting man with a weapon that he had assaulted previously assault. [53] It seems to me that the appellant’s conduct in the current appeal is more serious than that of McDonald, involving persistent attempts to fight, arming himself, holding the knife to the throat and slashing the complainant’s face, resulting in injury. While McDonald involved two offences, his offending did not involve a sharp weapon or broken glass. In contrast to McDonald, who has no criminal history marred by his character, the appellant here has a relevant and significant criminal history of violence. [54] It seems to me that if the court was dealing with the assault occasioning bodily harm whilst armed alone, the penalty would be in the order of 20 months up to 2 years and three months of imprisonment. [55] But given the numerous and various offences, it is necessary to look at the totality of the criminal behaviour and ask what the appropriate sentence is for all the offending. In sentencing concurrently, it is permissible to allow for the overall criminality by imposing a sentence for the most serious offence, which is more severe than it would be if the offence were falling for sentence in isolation.15 However, such a sentence must remain within a just range of punishment for the offence, lest it offend the over- arching principle that a sentence must not be so severe as to be disproportionate to the gravity of the offence to which it attaches.16 Even allowing for some uplift adequate to accommodate the overall criminality in the context of concurrent sentencing, I am bound to conclude that the head sentence of 2 years and 6 months is an excessive head sentence attaching to charge 14 of assault occasioning bodily harm whilst armed.17 [56] Applying the totality principle guided by the most closely comparable cases, I think that a sentence in the upper end of the range of 2 years and 3 months reflects the overall criminal conduct in the charges, and the original sentence of 2 years and 6 months imprisonment is excessive and outside the permissible range. 15 Nguyen v The Queen (2016) 256 CLR 656, 677 [64]; R v Nagy [2004] 1 Qd R 63, 72. 16 Veen v The Queen [No 2] (1988) 164 CLR 465, 477. 17 R v Cooney [2019] QCA 166. -- 13 of 16 -- 14 Did the learned magistrate give undue weight to the criminal history? [57] The appellant also argues that the learned magistrate misdirected himself by equating the penalty with Namai’s case whilst contrasting the appellant’s significant criminal history for violent offending. The respondent submits that it cannot be inferred that in doing so, his Honour placed too much weight on the appellant’s criminal history. [58] It is trite law that the appellant’s criminal history is a relevant matter for the proper exercise of the sentencing discretion. In particular, since the offence in charge 14 of assault occasioning bodily harm whilst armed was one involving violence within the meaning of s 9(2A) of the Penalties and Sentences Act, the learned magistrate was required to have regard to the matters set out in s 9(3). [59] Section 9(3)(g) required the court to have regard to “the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed”. Further, s 9(10) provides: “In determining the appropriate sentence for an offender who has one or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to – (a) the nature of the previous conviction and its relevance to the current offence; (b) the time that has elapsed since the conviction. [60] Subsection (11) provides: “Despite subsection (10), the sentence imposed must not be disproportionate to the gravity of the current offence.” [61] Clearly enough, the provisions reflect the common law as it stood and proclaimed in Veen v The Queen (No. 2) 18 as follows: “The antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences; Director of Public Prosecutions v Ottewell [1970] AC 642 at 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. 18 Veen v The Queen (No. 2) (1988) 164 CLR 465 at [14]. -- 14 of 16 -- 15 Applied by Cooper J (with whom Kneipp and Shepherdson JJ agreed) in R v Aston [No 2] [1991] 1 Qd R 375.” [62] The appellant has an extensive, relevant and significant criminal history with prior like convictions, relevantly here: 1. Involving violence - Serious assault – act done in execution of duty (2008); 2x Serious Assault – Police (2014, 2016); 3x Serious Assault Corrective Services Officer causing bodily harm (2020, 2021); 2x Common Assault (2010, 2021); Robbery with actual violence/armed/in company/wounded/used personal violence (2016); 3x Assault with Intent to Steal (2018, 2020, 2021); 11x Assault or Obstruct Police (2011, 2012, 2013, 2014, 2015, 2016, 2023). 2. Traffic & car offending - 15x Unlawful use of Motor vehicle, etc. (2008, 2009, 2010, 2011, 2013, 2014, 2015, 2016); 6x Attempted Unlawful use of Motor vehicle (2009, 2010, 2011, 2014); 3x Escape from lawful custody (2009, 2010, 2016); 5x Dangerous operation of a motor vehicle (2009, 2010, 2016); 3x Fail to stop (2011, 2015, 2016). 3. Public disorder - 12x Public Nuisance (2009, 2010, 2012, 2014, 2015, 2022, 2023); Going armed to cause fear (2011); Affray (2023); 2x Unlawful assembly participation after violence (2023). 4. Property offending - 7x Wilful Damage or destruction of property – corrections/police (2009, 2011, 2014, 2015, 2020); 5x Enter premises to commit indictable offence (2011, 2012, 2014, 2016, ); 2x Enter dwelling or Burglary (2011, 2016); Attempt enter premises (2023); 2x Trespass (2011, 2013); Stealing (2013). 5. Liquor & drug offences - 2x Prohibition of liquor in Restricted Area (2011, 2012); Possession of dangerous drugs (2014); 2x Possess homemade alcohol (2014). 6. Disobedience - Fail to appear (2014); Breach of Probation (2015); Breach of Bail (2015); Breach of Community Service Order (2016); Contravene a direction/requirement (2023); Contravention Police Protection Notice (2023); Breach community service order (2023); 2x Failure to appeal (2025). [63] The learned magistrate considered that there was a greater need for personal deterrence in circumstances where the appellant had a significant criminal history for offending involving violence. He remarked that “The offending also needs to be considered against what is a significant criminal history for offending involving violence, noting you have received orders for imprisonment in the past”. He also harked back to Namai’s “either a very limited or no prior criminal history” to say, “so in the circumstances, I am guided by the matter of Namai and I would contrast the matter of Namai with your circumstances where you have a significant history for offending involving violence”. [64] I have already discussed the learned magistrate’s use of Namai above; otherwise, I cannot discern any misapplication, mischaracterisation or misapplication of the appellant’s relevant past offending in relation to the nature and extent of the offending before him. I am not persuaded that his Honour allowed the criminal history to overwhelm his sentencing discretion. -- 15 of 16 -- 16 [65] Therefore, this ground of appeal fails. Resentence [66] Having reached that conclusion, it is incumbent on this court to re-exercise the sentencing discretion having regard to the matters discussed above. [67] The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community. The relevant factors to which the court must have regard are in the subsequent subsections of section 9 of the Penalties and Sentences Act. [68] It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so. The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence. For this offending, it is relevant to charge 14 that community protection is important and that the appellant is a moderate risk to the community of reoffending. Otherwise, for the other charges, imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable for those other charges. [69] Accordingly, I allow the appeal, set aside the sentence of 2 years and 6 months imprisonment for charge 14 of assault occasioning bodily harm whilst armed, and substitute 2 years and 3 months imprisonment for that charge. The parole release date will be altered commensurately to be 1 February 2026, being one third of the total period of imprisonment sentence. Order [70] For these reasons, I make the following orders: 1. The appellant has leave to file the appeal out of time. 2. Appeal allowed. 3. The sentence and orders of the Magistrates Court made in Cairns on 19 June 2025 are varied to the extent that: a. For the charge 14 of assault occasioning bodily harm whilst armed, the sentence 2 years and 3 months imprisonment is substituted in lieu of the sentence of 2 years and 6 months imprisonment. b. The parole release date of 1 February 2026 is substituted in lieu of 1 March 2026. 4. The other sentences and orders are affirmed. Judge DP Morzone KC -- 16 of 16 --