R v South - [2025] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

R v South [2025] QCA 52

PARTIES:

R
v
SOUTH, Cooper Victor
(applicant)

FILE NO/S:

CA No 277 of 2024
DC No 1696 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 17 December 2024 (Allen DCJ)

DELIVERED ON:

15 April 2025

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2025

JUDGES:

Bond and Bradley JJA and Burns J

ORDER:

The application for leave to appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of unlawfully doing grievous bodily harm – where the applicant was sentenced to two and a half years’ imprisonment – where the applicant was to be released on parole after serving eight months in custody – whether the sentencing judge erred in the exercise of discretion in sentencing the applicant – whether the sentence imposed was manifestly excessive

R v Bryan; Ex parte Attorney-General[2003] QCA 18, cited
R v Chitty; Ex parte Attorney-General (Qld)[2021] QCA 2, considered
R v Kinersen-Smith & Connor; Ex parte Attorney-General (Qld)[2009] QCA 153, considered
R v Levy & Drobny; Ex parte Attorney-General [2014] QCA 205, considered
R v Tupou; Ex parte Attorney-General (Qld)[2005] QCA 179, cited

COUNSEL:

S L Kissick for the applicant
S J Gallagher for the respondent

SOLICITORS:

King Criminal Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

BOND JA: I agree with the reasons for judgment of Bradley JA and with the orders proposed by his Honour.
BRADLEY JA: On 17 December 2024, the applicant was sentenced to two and a half years’ imprisonment with a parole release date after he had served eight months in custody. He sought leave to appeal against the sentence on the ground that it was manifestly excessive.
The sentence was imposed for the offence of doing grievous bodily harm. The applicant committed the offence over a few minutes from about 4.20 am on 12 August 2023, after he left the Treasury Casino in Brisbane in the company of two others. The acts constituting the offence were recorded on security footage from the casino and City Safe.
The complainant and his injuries
The complainant was 29 years of age. He was visiting from North Queensland for the weekend to see his parents. After a night at the football with his father, he went to the casino. The complainant left the casino a few minutes before the applicant and two companions.
The applicant pursued the complainant who was moving away from him along the footpath of William Street. The applicant struck the first blow by means of a push or a kick to the complainant. The complainant backed away from the applicant, into the middle of the roadway. The applicant advanced at him and struck a second blow, this time to the…

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 South

Details

AGLC: R v South [2025] QCA 52
Case: [2025] QCA 52
Decision Date: 15 April 2025

CaseChat Overview and Summary

In the case of R v South, the applicant appealed against the sentence imposed by the sentencing judge. The applicant pleaded guilty to one count of unlawfully causing grievous bodily harm and was sentenced to two and a half years’ imprisonment, with parole eligibility after serving eight months in custody. The applicant argued that the sentence was manifestly excessive. The primary legal issue before the court was whether the sentencing judge had erred in the exercise of discretion in sentencing the applicant and whether the sentence imposed was manifestly excessive.

The court found that the applicant had abandoned any attempt to identify a specific error in the sentencing judge’s approach. Instead, the application proceeded solely on the ground that the sentence was manifestly excessive. The sentencing judge had balanced the relevant features in the applicant's favour, including his timely plea, lack of criminal history, remorse, age, and prospects for rehabilitation. However, the court also considered the other factors relevant to the sentence, such as the serious violent nature of the unprovoked attack on the complainant, the applicant having left the scene with the complainant unconscious on the roadway, the significant consequences of the offence for the complainant, and the applicant's history of polysubstance abuse and identified problems with emotional and behavioural regulation. The court concluded that it could not be said that the sentence imposed on the applicant was manifestly excessive or that the sentencing judge must have misapplied a relevant principle.

ORDERS:
The application for leave to appeal is dismissed.

Orders

Orders of the court

The application for leave to appeal is dismissed.

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

Mr Kissick also relied on R v Levy & Drobny; Ex parte Attorney-General [1]The other offender had committed assault occasioning bodily harm. [2014] QCA 205. In that instance, Mr Levy was sentenced to two and half years’ imprisonment with immediate release on parole for causing grievous bodily harm.[1] He was aged 19 at the time of the offence and had no criminal history. He punched and kicked a taxi driver, causing facial fractures, a skull fracture and jaw joint dislocation, which required surgical repair with plates and screws. On the Attorney’s appeal, this Court found Levy’s sentence to be manifestly inadequate, in part by a comparison with Kinersen-Smith, and to have given too little weight to public deterrence. The substituted sentence remained at two and a half years’ imprisonment, but parole release was deferred until the offender had served six months in custody. Consideration of the application At the hearing of this application, the applicant abandoned any attempt to identify a specific error in the sentencing judge’s approach. There was no challenge to the findings his Honour made. The application proceeded solely on the ground that the sentence was manifestly excessive. In his thoughtful remarks, the sentencing judge balanced the relevant features in the applicant’s favour including his timely plea, his lack of criminal history, his remorse, his age, and his prospects for rehabilitation, with the other factors relevant to the sentence. These other factors included the serious violent nature of the unprovoked attack on the complainant, the applicant having left the scene with the complainant unconscious on the roadway, the very significant consequences of the offence for the complainant, and the applicant’s history of polysubstance abuse and identified problems with emotional and behavioural regulation. The weight to be given to each of these considerations was a matter for the sentencing judge in the exercise of the sentencing discretion. However, on analysis, it could not be concluded that the sentence imposed on the applicant was manifestly excessive or that the sentencing judge must have misapplied a relevant principle. Consideration of the cases identified by the applicant did not show any marked differences between those other sentences and that imposed upon the applicant for his offending. There was nothing that led to a conclusion that there must have been a misapplication of principle in this instance. Comparison with those decisions confirmed that the applicant’s sentence was not unreasonable or plainly unjust.Final disposition The application for leave to appeal should be refused. BURNS J: I agree that this application for leave to appeal against sentence must be dismissed, for the reasons given by Bradley JA.

CITATION:	R v South [2025] QCA 52
PARTIES:	R v SOUTH, Cooper Victor (applicant)
FILE NO/S:	CA No 277 of 2024 DC No 1696 of 2024
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 17 December 2024 (Allen DCJ)
DELIVERED ON:	15 April 2025
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2025
JUDGES:	Bond and Bradley JJA and Burns J
ORDER:	The application for leave to appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of unlawfully doing grievous bodily harm – where the applicant was sentenced to two and a half years’ imprisonment – where the applicant was to be released on parole after serving eight months in custody – whether the sentencing judge erred in the exercise of discretion in sentencing the applicant – whether the sentence imposed was manifestly excessive R v Bryan; Ex parte Attorney-General[2003] QCA 18, cited R v Chitty; Ex parte Attorney-General (Qld)[2021] QCA 2, considered R v Kinersen-Smith & Connor; Ex parte Attorney-General (Qld)[2009] QCA 153, considered R v Levy & Drobny; Ex parte Attorney-General [2014] QCA 205, considered R v Tupou; Ex parte Attorney-General (Qld)[2005] QCA 179, cited
COUNSEL:	S L Kissick for the applicant S J Gallagher for the respondent
SOLICITORS:	King Criminal Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent