R v Stephensen

[2025] QCA 156

SUPREME COURT OF QUEENSLAND

CITATION:

R v Stephensen [2025] QCA 156

PARTIES:

R
v
STEPHENSEN, Mark Christopher
(applicant)

FILE NO/S:

CA No 113 of 2024
DC No 157 of 2024

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 23 May 2024 (Fantin DCJ)

DELIVERED ON:

26 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2025

JUDGES:

Mullins P, Doyle JA and Cooper J

ORDERS:

1.   Application for leave to add an additional ground for the application for leave to appeal against sentence refused.

2.   Oral application for leave to adduce evidence refused.

3.   Application for leave to appeal against sentence refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was convicted after a trial of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene – where the applicant was the sole carer of his four children at the time of sentencing – where the sentencing judge took into consideration the impact of the sentence on the applicant’s children – where the applicant’s mother took over the care of the four children – where the applicant sought leave to adduce further evidence regarding the declining health of his mother and his eldest child not assuming responsibility for caring for his other children – where the applicant sought leave on appeal to add compassionate grounds to reduce his sentence to enable him to assume caring responsibilities for his children – whether the applicant should be granted leave to add the additional ground and adduce additional evidence relating to the compassionate grounds

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after a trial of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene – where the applicant’s conduct was found to be deliberately dangerous and not merely reckless – where the applicant was the sole carer of his four children at the time of sentencing – where the sentencing judge took into consideration in favour of the applicant the admissions made at trial by the applicant to reduce the number of witnesses, the impact of the sentence on the applicant’s children, and that custody would be more onerous on the applicant due to his mental health conditions – where there were aggravating factors that he applicant ran over the complainant deliberately and left the scene before police arrived – whether the sentence imposed was manifestly excessive

Criminal Code (Qld), s 668E

R v Browne[2016] QCA 111, cited
R v Colegate[2022] QCA 148, cited
R v DCQ[2025] QCA 146, cited
R v Hughes [2004] 1 Qd R 541; [2003] QCA 460, considered
R v Maniadis [1997] 1 Qd R 593; [1996] QCA 242, cited
R v Tresize[2011] QCA 139, cited

COUNSEL:

The applicant appeared on his own behalf
H S McIntyre for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

1. THE COURT:  On 15 March 2024, Mr Stephensen was convicted after trial lasting five days in the District Court before a jury of one count of dangerous operation of a motor vehicle causing grievous bodily harm, before leaving the scene.  The maximum penalty for that offence when it was committed was 14 years’ imprisonment.  Mr Stephensen was sentenced on 23 May 2024 to imprisonment for a period of five years and six months with an eligibility for parole date fixed at 14 December 2026 (after serving 33 months or one-half of the sentence).  A presentence custody declaration was made in respect of 69 days served in imprisonment between 15 March and 22 May 2024.  He was disqualified from holding or obtaining a driver’s licence for four years.

2. Mr Stephensen was represented by counsel and solicitors at the trial and at the sentencing hearing.  Mr Stephensen is not legally represented for his application for leave to appeal against sentence.  The only ground for his application is that the sentence was manifestly excessive.  His written submissions raise an additional ground (the compassionate ground) that, due to the decline in his mother’s health and that his elder son has failed to take on the care of Mr Stephensen’s three younger children, he seeks a reduction in his sentence on compassionate grounds.  He needs leave to add this additional ground.  Mr Stephensen’s amended outline lodged with the Registry on 30 July 2025 attached documents in support of the compassionate ground.  Mr Stephensen has made an oral application for leave to adduce this additional evidence.

3. The application to add the additional ground and the application for leave to adduce the additional evidence are related and will be determined in conjunction with the application for leave to appeal against sentence.

   Circumstances of the offending

4. The complainant was Mr Stephensen’s niece’s partner.  There was a history of conflict between Mr Stephensen and the complainant.  On 4 March 2022, the complainant and Mr Stephensen had a physical fight.  Mr Stephensen had got out of his car armed with a long, thick metal torch and started swinging it at the complainant who defended himself by punching Mr Stephensen.  Mr Stephensen’s teenage son got out of the car armed with a hammer and tried to assist his father.  The niece took the hammer from Mr Stephensen’s son and gave it to the complainant who told Mr Stephensen to put the bat down and “fight fair” while the complainant held the hammer down by his side.  Mr Stephensen then got into his car with his teenage son as a passenger, revved the engine, accelerated and turned the car towards the complainant while he was very close to the front right of the car but walking away.  Mr Stephensen drove the car and ran the complainant over.  The complainant’s leg went under the right front wheel, causing multiple fractures to the leg when the complainant was presenting no threat to Mr Stephensen.

5. Mr Stephensen drove off before the police arrived, in circumstances where he ought reasonably to have known the complainant was injured.  He did not drive off to obtain medical or other help for the complainant.  The physical fight that preceded Mr Stephensen’s driving over the complainant’s leg was captured on CCTV footage from the nearby service station.  The complainant’s arms were draped on the bonnet of the car, as he went under the front of the car.  The CCTV footage showed the car “jerking” as Mr Stephensen ran over him.  Mr Stephensen was not affected by drugs or alcohol at the time.  His conduct was “deliberately dangerous, not merely reckless”.

6. Mr Stephensen participated in a record of interview with police on the same day as the offence.  He admitted to driving the car but told lies that were shown to be so by the CCTV footage.  Mr Stephensen gave evidence at the trial and called evidence from his son.  Mr Stephensen maintained that he had driven off to get away from the complainant because he was threatening to hit Mr Stephensen with the hammer.  The jury’s verdict showed that they were satisfied beyond reasonable doubt that Mr Stephensen had no lawful excuse for driving dangerously, he was not acting in circumstances of a sudden or extraordinary emergency, and that he did not reasonably believe there was such an emergency.

7. The complainant suffered serious physical injuries, including a displaced transverse fracture of the tibia and a comminuted fracture of the proximal fibula.  He underwent surgery.  A metal rod was inserted into his tibia.  The injuries constituted grievous bodily harm.  For four months after the offending the complainant was not able to do anything physical.  He suffered financial loss in not being able to work.  The complainant requires further surgery to remove the metal bolts from his leg and has continued to suffer emotional harm.

   Applicant’s personal and criminal history

8. The offence was committed just before Mr Stephensen turned 45 years old.  He has four children.  At the date of sentence he had sole custody of them and their ages ranged between 10 years and 18 years.  He and his children were living with his mother.

9. Mr Stephensen left school in year 10 and started working on banana farms.  When he was in his 20s he suffered a workplace injury to his shoulder that required surgery and steel implants.  He stepped back from paid work when he became the sole carer of his children.  He returned to some periods of truck driving and maintenance work when the two eldest children reached high school.

10. Mr Stephensen’s criminal history commenced in 1995 when he was 18 years old for possession of a dangerous drug.  He had three subsequent appearances in the Magistrates Court for minor offending for which he was fined or ordered to pay restitution.  In 1999 he was admitted to a probation order for 12 months for driving under the influence of alcohol or other substance.  He was dealt with for wilful damage and other offences in the District Court on 26 June 2000 for which he was given probation for two years (with a special condition to attend a substance abuse program) and community service of 150 hours.  The community service order was revoked in February 2001 because of his inability to perform due to injury.  There was then a significant period of about 17 years when no offences were committed until the subject offence.  Whilst on bail for the subject offence, Mr Stephensen committed public nuisance on 22 December 2023 for which he was fined $300.  Mr Stephensen has a lengthy traffic history with multiple periods of suspension for accumulation of demerit points.  There were dated entries for unlicenced driving and driving under the influence of alcohol but there was significant improvement in his traffic history in recent years.

11. Mr Stephensen was assessed by clinical psychologist, Ms Jones, who provided a report (exhibit 7) for the purpose of the sentencing.  Ms Jones interviewed Mr Stephensen by video on 29 April 2024 and was provided with documents from his treating psychologist and general medical practitioner together with relevant documents from the trial.  The report included the following.  Mr Stephensen had some difficulties at school related to his poor behaviour and inattention in class and reported being diagnosed with attention deficit hyperactivity disorder.  He commenced cannabis use at the age of 14 years.  Prior to the commission of the offence, there had been an issue involving his elder son and the son’s girlfriend who was a minor at the time and Mr Stephensen became frustrated that complaints he made to the police regarding harassment towards his son were not acted upon.  The offence was committed in circumstances where Mr Stephensen has collected his second son in response to a call and was feeling distressed about the call from his son.  Mr Stephensen reported being diagnosed with a genetic bone disease and having scoliosis of the spine.  He reported a more recent diagnosis of post-traumatic stress disorder which resulted in his commencing psychological therapy in February 2023.  On the application of psychometric instruments and results, Mr Stephensen’s self-reported scores fell within the extremely severe range for depression and anxiety and within the severe range for stress.  At the time of the offence, Mr Stephensen was highly stressed due to being in the presence of persons who had traumatised him and his son and in the context of his underlying propensity to have a poor ability to control his reactivity and his heightened state on the day of the offending.  It was likely Mr Stephensen’s distress in custody will increase.  Given Mr Stephensen’s history and his presentation at the time of the assessment, it was likely that a custodial sentence would generally be more onerous upon him, when compared to others who did not have his background, diagnoses and vulnerabilities.

    Sentencing remarks

12. Apart from outlining the circumstances of the offending and Mr Stephensen’s personal and criminal history, the sentencing remarks included the following.  Despite Mr Stephensen’s continuing to maintain that he did not know that he had run over the complainant, the CCTV footage made it impossible to conclude that Mr Stephensen did not know he had run the complainant over.  Mr Stephensen’s behaviour on the day of offending was aggressive and erratic and he was in “a highly elevated, agitated state” which contributed to his impulsive and deliberate decision to drive towards the complainant.  Mr Stephensen had not been charged with any separate offences constituting assault or otherwise for the conduct that immediately preceded driving over the complainant.  The physical interaction between Mr Stephensen and the complainant was not taken into account as an aggravating factor on the sentence.  It counted in Mr Stephensen’s favour that he made admissions during the trial that reduced the number of witnesses called to give evidence.  Mr Stephensen’s criminal history was “largely dated” and was not given significant weight in the sentencing.

13. Mr Stephensen was not to be punished for pleading not guilty in the face of “a very strong prosecution case” where there was CCTV footage of the offending. By proceeding to trial, there was no evidence of remorse or contrition on Mr Stephensen’s part to mitigate the sentence. Even though Mr Stephensen expressed regret about the consequences of his behaviour for his immediate family, he had only himself to blame. His elderly mother was now with the assistance of his elder son caring for the other children. This was a case where s 9(2)(fb)(i) of the Penalties and Sentences Act 1992 (Qld) (PSA) was enlivened, as Mr Stephensen was the primary caregiver for his children. It was not suggested that because of Mr Stephensen’s imprisonment they were left without adequate care as his mother was living with them and his elder son was also taking a responsible role assisting in the care of his siblings. The hardship for his children as a consequence of his behaviour and imprisonment was a matter to take into account in mitigation but not a determinative factor. It was “one factor in circumstances where there are not many factors in mitigation”.

14. Mr Stephensen self-reported a degenerative bone disease and a previous diagnosis of PTSD.  His physical health condition meant he was unable to perform physical work.  Mr Stephensen had also self-reported a diagnosis in his primary school years of ADHD.  In circumstances where those matters were not contested by the prosecution, the sentencing judge accepted that Mr Stephensen may present as someone with symptoms consistent with ADHD.  Mr Stephensen’s difficulty regulating his emotions and controlling his behaviour was manifest during the trial, demonstrated by frequent calling out, agitated physical behaviour in court and other displays.  His physical or mental health conditions did not reduce the moral culpability of the offending because of the deliberate nature of his conduct.  His poor impulse control and poor behavioural control is relevant to his risk of reoffending.  The sentencing judge accepted that Mr Stephensen’s conditions would likely make the time served in custody more onerous for Mr Stephensen than when compared to others who did not have his background and vulnerabilities and that was a matter to take into account in his favour.  His ongoing imprisonment will have an adverse impact on his mental health which was also a matter in his favour.  General and specific deterrence and denunciation were important.  Protection of the community was less significant in Mr Stephensen’s case.  The sentence must also facilitate his ongoing rehabilitation.  The mitigating factors in Mr Stephensen’s favour did not warrant deferring the parole eligibility date until after more than one-half of the sentence was served.

    Should the applicant be given leave to add the additional ground and adduce evidence?

15. The role of this Court on an appeal against sentence is to discern whether an error was made by the sentencing judge in the sentence that was imposed and, if there was some other sentence warranted in law that should have been imposed, then that other sentence can be substituted: see s 668E(3) of the Criminal Code (Qld). In undertaking that task the Court focuses on the circumstances that existed at the time of the sentence: R v DCQ [2025] QCA 146 at [44]. The material relied on by the applicant for the compassionate ground reveals that Mr Stephensen’s expectations when he was sentenced that his mother in conjunction with his elder son would have the responsibility for caring for his three younger children have not been met due to the significant decline in his 83 year old mother’s health and that his elder son did not assume the responsibility of caring for his grandmother and his siblings and left the family home.

16. An appeal against sentence is not for the purpose of reviewing the sentence because circumstances have arisen subsequent to the sentence that affect the domestic arrangements of the person who was sentenced: R v Hughes [2004] 1 Qd R 541 at [14]. There have been successful sentence appeals where evidence is adduced on appeal that was not available at the date of sentence but those cases are exceptional. In R v Maniadis [1997] 1 Qd R 593 at 595, psychiatric and psychological reports concerning the applicant showed that he was so deeply depressed at the prospect of imprisonment he was potentially at risk of committing suicide and that he was also suffering from depression at the time he committed the stalking offences for which he had been sentenced. These additional reports were admitted on the application for leave to appeal in Maniadis on the basis (at 597) that their admission showed that some other sentence was warranted in law and that the sentence, in fact, imposed was unwarranted in the sense that it was manifestly excessive. Davies JA and Helman J (with whom Fitzgerald P agreed) noted at 597:

    “Evidence of events occurring after the date of sentence is generally unlikely to show this unless it shows what the state of affairs was at the time the sentence was imposed.”

17. There were circumstances of urgency in Hughes at [12], when medical evidence obtained subsequent to the sentence showed that the prognosis for the disease which the prisoner had at the date of sentence had changed so that his life expectancy was probably measured in weeks or months. McMurdo J (with whom McPherson JA and Holmes J agreed) observed in Hughes at [16] that Maniadis “should not be treated as authority for the admission of evidence of matters arising after the sentence hearing unless that evidence is adduced to prove a fact existing when the sentence was imposed”.

18. Mr Stephensen’s appeal against his sentence could not succeed on the compassionate ground.  The care arrangements for his children were a known issue at the date of sentence.  The fact that the care arrangements have not turned out as he had hoped is not a proper ground on which to assert that the sentence that was imposed was not warranted in the circumstances that applied at his sentencing.  His application therefore for leave to add the compassionate ground as an additional ground and his application for leave to adduce evidence relating to the compassionate ground must be refused.

    Is the sentence manifestly excessive?

19. The most recent of the comparable authorities put before the primary judge were R v Colegate [2022] QCA 148 and R v Browne [2016] QCA 111.

20. The offender in Colegate pleaded guilty to the first offence of attempting to enter a dwelling house at nighttime intending to alarm a man who lived there and the second offence of, whilst intoxicated, dangerously operating a car causing grievous bodily harm to a woman who was driving her car in an attempt to get away from him.  The offender was 42 years old at the time of the offences and had a serious criminal history.  The offender and the complainant for the second offence had been in a relationship until the night before the incident when they argued and she told him she intended to end it.  When she left the house in her car on the following morning, the offender pursued her over a distance of 19 km through suburban streets when she felt compelled to drive dangerously to get away from him.  Ultimately, the offender drove on the wrong side of the road and accelerated into the rear right side of her car, causing her car to spin and crash into a fence.  She suffered injuries including fractures of the skull and face, a collapsed lung, a fractured collarbone and pelvis fractures.  The grievous bodily harm involved an injury which caused haemorrhages to the brain for which she spent two months in hospital and which caused her serious and ongoing problems.  For the first offence, the offender was sentenced to 15 months’ imprisonment.  For the second offence, he was given a concurrent term of six years’ imprisonment.  He was given a parole eligibility date fixed after serving two years in custody.  The sentence of six years’ imprisonment which reflected the totality of his offending for the two offences was found not to be manifestly excessive.

1. Even though the dangerous driving offence in Colegate had a different circumstance of aggravation, the maximum penalty was the same as for the offence committed by Mr Stephensen.  The offender in Colegate had a serious criminal history, the duration of his dangerous driving was much longer than Mr Stephensen’s dangerous driving and the sentence imposed for the dangerous driving took account of the criminality of the first offence for which he was sentenced at the same time, but his sentence did reflect his guilty plea.

2. The offender in Browne also pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance.  He was sentenced to four years’ imprisonment to be suspended after 16 months with an operational period of four years.  He was unsuccessful in obtaining an extension of time for leave to appeal against the sentence.  His car had been observed swerving along the road for about 150-200 m before it hit the complainant who was in the process of getting into a parked vehicle.  The complainant suffered transverse fractures to the tibia and fibula of his right leg as well as cuts and grazes to his head and legs.  He underwent surgery and he was still suffering from physical limitations and pain 18 months after the incident.  The offender was 34 years old at the time of the offence and had a history of drug and alcohol related offences from age 23 years.  He was unsuccessful in his application.

3. One of the decisions referred to in Browne was R v Tresize [2011] QCA 139. The offender in that case pleaded guilty to dangerous operation of a vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance. The dangerous driving took place over some 7.3 km. He was doing “burn outs” and then weaved in and out of the traffic. The vehicle crossed the double white lines and swerved into the lane in which the vehicle in which the complainant was a passenger was then travelling. The driver of that vehicle was unable to avoid the collision. He had a blood alcohol concentration of 0.19 per cent and 0.12 mg/kg of the active ingredient of cannabis in his blood. The complainant sustained a comminuted fracture of the distal right radius which required surgery and at the date of sentence continued to suffer from pain with physical limitations. The offender was 32 years old at the date of the offence and had a serious traffic history and convictions for assaults and some drug offences. The seriousness of his offending was emphasised, as he engaged in deliberate conduct in a course of driving over 7.3 km that placed at serious risk those travelling on the roadway. The sentence of five years’ imprisonment with a parole eligibility date fixed after 18 months was found not to be manifestly excessive.

4. The sentences in both Browne and Tresize reflected the guilty pleas and both offenders were reckless in their driving rather than driving deliberately to collide with the relevant complainant.

5. The sentencing judge gave some limited weight to the factors identified in the course of the sentencing remarks that were in Mr Stephensen’s favour which were the cooperation in making admissions during the trial, the probable effect that any sentence imposed would have on Mr Stephensen’s children as he was their primary caregiver (s 9(fb)(i) of the PSA), and that his ADHD and PTSD would make his time in custody more onerous than for others without his vulnerabilities.  The sentencing judge made a specific finding that these conditions did not reduce Mr Stephensen’s moral culpability for the offence.  He did not have the benefit of a guilty plea.  He had no remorse or contrition for his deliberate conduct in running over and causing grievous bodily harm to the complainant which was aggravated by his leaving the scene before the police arrived.  The analysis of the above authorities shows that the sentence imposed on Mr Stephensen was neither unreasonable nor plainly unjust.

   Orders

6. It follows the orders which should be made are:

   1.Application for leave to add an additional ground for the application for leave to appeal against sentence refused.

   2.Oral application for leave to adduce evidence refused.

   3.Application for leave to appeal against sentence refused.