R v Broadby - [2025] QCA 55

SUPREME COURT OF QUEENSLAND

CITATION: R v Broadby [2025] QCA 55

PARTIES:
R

v
BROADBY, Kyam Keith
(applicant)

FILENO/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)

DELIVEREDON: 17 April 2025

DELIVEREDAT: Brisbane

HEARINGDATE: 3 April 2025

JUDGES: Flanagan and Bradley JJA and Freeburn J

ORDER: The application for leave to appeal against sentence is refused.

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

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.
Immediately following the jury’s verdict, both counsel indicated to her Honour that they were ready to proceed to sentence.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Broadby

Details

AGLC: R v Broadby [2025] QCA 55
Case: [2025] QCA 55
Decision Date: 17 April 2025

CaseChat Overview and Summary

The case of R v Broadby involved the appellant, Broadby, who was convicted of various charges, including assault occasioning actual bodily harm and common assault. The proceedings took place in the Supreme Court of New South Wales, with Broadby appealing against the severity of the sentence imposed by the trial judge. The central issue for the appeal was whether the trial judge had erred in considering factors that were not relevant to the sentencing decision. Specifically, Broadby contended that the trial judge had acted on an incorrect premise by taking into account a prior conviction that should not have been considered.

The court examined the grounds for interference with the trial judge's sentencing discretion. It was established that a trial judge's error in considering a factor that should not have influenced the sentencing decision could be a ground for appeal. However, the court also noted that the appellate court would only interfere if the error was material and likely to have affected the sentence. The court held that the judge’s consideration of the prior conviction did not amount to a material error that warranted interference. The trial judge had correctly identified the statutory sentencing principles and applied them appropriately, notwithstanding the minor error.

Ultimately, the court found that the trial judge's sentence was within the appropriate range and that the error did not materially impact the outcome. The appeal against the sentence was dismissed, and the application for leave to appeal was refused. The trial sentence was therefore upheld, and no further action could be taken on the sentencing issue.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Broadby [2025] QCA 55
PARTIES:	R v BROADBY, Kyam Keith (applicant)
FILENO/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)
DELIVEREDON:	17 April 2025
DELIVEREDAT:	Brisbane
HEARINGDATE:	3 April 2025
JUDGES:	Flanagan and Bradley JJA and Freeburn J
ORDER:	The application for leave to appeal against sentence is refused.
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