R v Venzlouskas - Sentence Appeal Refused

R v Venzlouskas [2026] QCA 69 (21 April 2026)

Last Updated: 21 April 2026

SUPREME COURT OF QUEENSLAND

| CITATION: | R v Venzlouskas [2026] QCA 69 |
| PARTIES: | R v

VENZLOUSKAS, Joshua
Matthew

(applicant) |
| FILE NO/S: | CA No 111 of 2023 DC No 2075 of 2021 |
| DIVISION: | Court of Appeal |
| PROCEEDING: | Sentence Application |
| ORIGINATING COURT: | District Court at Brisbane – Date of Sentence: 26 May 2023 (McDonnell
DCJ) |
| DELIVERED ON: | 21 April 2026 |
| DELIVERED AT: | Brisbane |
| HEARING DATE: | 31 March 2026 |
| JUDGES: | Mullins P, Bradley JA, Hindman J |
| ORDERS: | 1. The
application for leave to adduce further evidence is refused.
2. The
application for leave to appeal against sentence is refused. |
| CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– POWERS OF APPELLATE COURT – TO ADMIT NEW EVIDENCE
– where
the applicant pleaded guilty in the District Court to assault occasioning bodily
harm, while armed (count 1) and two
counts of malicious act with intent (counts
2 and 3) – where applicant spent presentence custody in maximum security
unit since
offending – where applicant likely to spend significant period
of sentence in maximum security unit – where violent behaviour
at least
contributed to by personality disorder – where a psychiatrist’s
report was before the sentencing judge –
where applicant seeks to adduce
further evidence in form of further psychiatrist’s report – whether
if the further report
were not received there would be a miscarriage of
justice CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where the applicant pleaded guilty in the District Court to
assault occasioning bodily harm, while
armed (count 1) and two counts of
malicious act with intent (counts 2 and 3) – where applicant spent
presentence custody in
maximum security unit since offending – where the
applicant has remained in maximum security unit to date – where applicant
likely to spend significant period of remaining sentence in maximum security
unit – where violent behaviour at least contributed
to by personality
disorder – where sentencing judge did not explicitly refer to the
applicant’s past and likely future
time in maximum security unit in the
sentencing remarks – whether sentence manifestly excessive having regard
to time spent
and likely to be spent in maximum security unit Criminal Code (Qld), s 671B(1) Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25, applied R
v DCQ [2025] QCA
146, cited

R v Katsidis; ex parte A-G (Qld) [2005] QCA
229, cited |
| COUNSEL: | R W Haddrick (pro bono), with E J Lewsey, for the applicant M A Green
for the respondent |
| SOLICITORS: | Pascoe Law for the applicant Director of Public Prosecutions
(Queensland) for the respondent |
[1] MULLINS P: I agree with Hindman J.

[2] BRADLEY JA: I agree with the reasons of Hindman J and with the
orders proposed by her Honour.

[3] HINDMAN J: The applicant applies for leave to appeal against the
sentence imposed on him on 26 May 2023 of:

(a) three and a half years’ imprisonment for count 1, assault occasioning
bodily harm while armed; (b) eight years’ imprisonment with a serious violent offence declaration
for count 2, malicious act with intent (wounding with
intent to prevent a
public officer from acting under lawful authority); and

(c) nine years’ imprisonment with a serious violent offence declaration
for count 3, malicious act with intent (wounding with
intent to do grievous
bodily harm).
[4] The applicant is to serve the terms of imprisonment concurrently. 696
days spent in pre-sentence custody were declared as time
served under the
sentence. The balance of 381 days was declared to not be taken as time served
under the sentence. There is no
complaint by the applicant about those parts of
the sentence, or the declarations that counts 2 and 3 were serious violent
offences.

[5] The applicant contends that:

(a) the sentence imposed did not take into account that the applicant had served
the pre-sentence custody in the Maximum Security
Unit (MSU); and (b) further psychiatric evidence (sought to be adduced by leave) demonstrates
that the applicant has a severe personality disorder
with psychopathic traits,
so that since sentence he has been in the MSU, and he is likely to continue to
be housed there.
[6] Thus, it is contended for the applicant that the sentence imposed on him
is manifestly excessive.

[7] I conclude that the application for leave to adduce further psychiatric
evidence ought be refused. The further evidence is in
the nature of evidence
that actually was adduced, and could have been adduced, at the sentencing
hearing. Insofar as it confirms
that the applicant has continued to be housed
in the MSU since the sentence was imposed, that was a matter contemplated as a
real
likelihood at the time of the sentencing hearing.

[8] If the further psychiatric evidence were permitted to be adduced, it
would not show that the sentence is manifestly excessive.
I would refuse the
application for leave to appeal the sentence in any event.

Application for leave to adduce further evidence

[9] Further evidence sought to be adduced on an appeal against sentence,
whether it be new evidence or fresh
evidence, [1] will generally be
permitted where it is necessary or expedient in the interests of justice to
admit the evidence (for example, where
its admission might show some other
sentence is warranted) and where, if the further evidence were not received,
there would be a
miscarriage of
justice. [2] Accordingly, this court
is generally reticent to allow applicants on appeals against sentence to seek to
adduce new evidence that
could have been adduced at the time of the sentence
hearing, without good reason, or to permit fresh evidence where what is
disclosed
by the fresh evidence is merely something that was contemplated and
taken into account at the time of the sentence. Sentence hearings
are not to be
treated as interim with further evidence being later produced to the appeal
court for consideration if the initial
sentence outcome is not as desired by the
offender.

[10] The applicant seeks leave to adduce a report of Associate Professor Anna
Lenardon dated 30 January 2026. Professor Lenardon
is a consultant forensic
psychiatrist. Her report assesses the impact of imprisonment on the applicant.
It is based on a review
of material provided to her and an interview with the
applicant on 13 February 2025.

[11] The key aspects of the report are first (the new evidence), the
expressed opinions that (1) the applicant presents as suffering
from a
severe personality disorder with psychopathic traits, (2) that the
applicant’s prognosis is guarded, and (3) that there
are no known specific
treatment approaches likely to be effective to assist him to reform his
problematic behaviours; accordingly,
(4) it could be expected that a move out of
the MSU whilst imprisoned is unlikely. Second (the fresh evidence), is the fact
of the
applicant having continued to be housed in the MSU since the sentence was
imposed such that he had been housed in the MSU for nearly
five years and nine
months as at the date of the report.

[12] The applicant would rely upon this further evidence for two purposes.
First, to demonstrate that the sentencing judge should
have engaged with the
circumstance that at the time of sentencing the applicant had been housed in the
MSU since the relevant offending
– the allegation her Honour did not do so
is said by the applicant to warrant a re-opening of the sentence. Second, the
applicant
is likely to serve a very significant part (if not all) of his
sentence housed in the MSU because of his severe personality disorder
–
the applicant says this results in the sentence being manifestly excessive.

[13] Apart from the fresh evidence that the applicant was in the MSU up to
the date of the report, the balance of the matters in the
report were either
adequately before the sentencing court in the form of a report tendered by the
defence from consultant psychiatrist
Dr Velimir Kovacevic dated 25 March 2023,
or were matters about which the applicant could have adduced evidence at the
sentencing
hearing but did not.

[14] At the sentencing hearing, the material before the sentencing judge
strongly indicated that the applicant was unlikely to move
out of the MSU, at
least in the short to medium term, whilst his treatment was being progressed.
This was evident from the report
of Dr Kovacevic.

[15] Dr Kovacevic opined as to:

(a) the likelihood that the applicant suffered from a mixed personality disorder
with strong antisocial and psychopathic tendencies
(confirming an earlier
psychological assessment by Dr Michelle Andrews diagnosing mixed personality
disorder – antisocial,
borderline and paranoid, with a moderate level of
psychopathic personality traits); (b) the applicant’s management in custody being complex;

(c) the applicant having been in the MSU for the majority of his time in
custody, and that the timing of his release from such conditions
was unknown;

(d) it being unlikely the applicant would be released from the MSU for the
foreseeable future, given his then mental state and his
high propensity for
violence.
[16] In that way, the import of Professor Lenardon’s report was before
the sentencing judge though the other evidence. The
applicant offered no
adequate explanation as to why a report to the effect of the new evidence could
not have been obtained and produced
before the sentencing judge.

[17] The likelihood that the applicant would remain in the MSU following the
sentence (the fresh evidence) was before the sentencing
judge.

[18] In those circumstances, I would refuse the application for leave to
adduce the proposed further evidence in this proceeding.

The facts of the offending upon which the sentence proceeded

[19] The facts of the offending were reduced to an agreed statement of facts.
The key aspects of that statement (and other facts of
the offending provided by
the applicant at the sentencing hearing) can be summarised as follows:

(a) At the time of the offending the applicant was 25 years old and was remanded
at the Arthur Gorrie Correctional Centre in the
W2 prisoner unit in relation to
unrelated offending. (b) On 3 July 2020, two corrective services officers (CSOs) attended the
applicant’s cell to discuss with the applicant a behavioural incident from
the previous day.

(c) The applicant had a plan to attack the CSOs in his cell that day. The night
before, he had fashioned a shiv out of materials
in his cell. It was
18 centimetres in length and sharpened into a blade-like point. He
intended to use it in the attack. The applicant
later explained his purpose to
be to take a CSO hostage so that he could demand and be supplied with
oxycodone, which he intended
to use to commit suicide.

(d) The applicant commenced carrying his plan into effect by punching one of the
CSOs in the head and body 5 to 6 times when he entered
the cell. The CSO fell
to the ground.

(e) The applicant then attacked the second CSO with punches to the head. He
held the shiv in his punching hand. It connected with
the CSO’s eyelid,
penetrating it. The tip of the shiv broke off and lodged in the CSO’s
eyelid (ultimately requiring
surgery to remove it). The second CSO was knocked
to the floor. The applicant took him hostage, holding him from behind in a bear
hug on the floor with the shiv at the CSO’s neck.

(f) The first CSO attempted to negotiate with the applicant. The applicant made
threats to harm and kill the second CSO. The applicant
made demands and
escalated in his agitation and erratic behaviour.

(g) Without warning, the applicant used the shiv to stab the second CSO at least
three times in the neck. He continued to stab the
CSO even as chemical pepper
spray was deployed.

(h) The applicant was eventually brought under control by a prison tactical
response team. The hostage situation had lasted about
4 minutes.

(i) The applicant was transferred to the MSU. He made full admissions as to the
offending. Both the CSOs suffered injuries.
No error in the sentencing decision

[20] I accept that the sentencing judge did not separately and expressly in
her sentencing remarks refer to (1) the applicant having
been in the MSU since
the offending or (2) the high likelihood that he would remain in the MSU
for a significant period of his sentence
(if not all of his sentence) at least
in part because of his underlying diagnosis and its effect on his behaviour.
Both matters
were canvassed during the sentencing hearing. Her Honour took both
into account.

[21] During submissions:

(a) the Crown Prosecutor referred to:

(i) the applicant being classified as a high-security prisoner; (ii) the psychiatric report of Dr Kovacevic;

(iii) the report indicating the applicant’s poor prospects of
rehabilitation given his increased potential for severe interpersonal
violence;
and

(iv) the sentencing judge’s remarks that the applicant’s lack of
further offending might have been due to a lack of opportunity
(implicitly
because the applicant had been in the MSU since the relevant offending);
(b) defence counsel referred to:

(i) the report of Dr Kovacevic; (ii) Dr Kovacevic’s opinion that there was more work to be done in terms
of the applicant’s rehabilitation;

(iii) the sentencing judge’s remarks about the applicant’s lack of
opportunity to further offend.
[22] The sentencing judge referred to these matters during her Honour’s
sentencing remarks. Her Honour also:

(a) referred to Dr Kovacevic’s report, which dealt with these issues; (b) noted the applicant’s likely diagnosis of mixed personality disorder
with strong antisocial and psychopathic tendencies,
and an increased potential
for violence;

(c) noted that the applicant exhibits increased potential for severe
interpersonal violence, which would require considerable therapeutic
effort to
reduce the risk of violent reoffending; and

(d) noted the applicant’s poor prospects of rehabilitation.
[23] It was obvious that, because the offending had occurred in a custodial
environment and had caused serious harm to the CSOs, the
applicant would likely
remain in the MSU until some very significant changes in his behaviour were
demonstrated. It was also obvious
that it was likely to be difficult for the
applicant to achieve any change in his behaviour. So much was confirmed by the
report
of Dr Kovacevic.

[24] In the above circumstances, I would not conclude that the sentencing
judge was unaware that the applicant had spent his time
in the MSU since the
commission of the offences or that consequently her Honour did not take that
mitigating feature into consideration
when imposing the sentence. Nor am I
prepared to conclude, as the applicant urges, that the sentencing judge was not
informed and
did not take into account the possibility (which has now in fact
eventuated) of the applicant serving an extensive period of his
sentence in the
MSU, attributable to behaviour influenced by his likely diagnosis, particularly
of a severe personality disorder.
I am satisfied those matters were taken into
account by the sentencing judge.

[25] It was not essential for any specific conditions of the MSU to be placed
before the sentencing judge. Her Honour had information
from the Crown
Prosecutor that the applicant was kept separate from other inmates and had
limited time out of his cell. Her Honour’s
attention was drawn to how Dr
Kovacevic had described the applicant being brought into the interview room,
which provided insight
into the way in which the threat of the applicant
committing violence in the custodial environment was being
managed. [3] The applicant could have
adduced more evidence about the custodial conditions at the time of sentence,
and did not do so.

Conclusion

[26] I would dismiss the application for leave to adduce further evidence. I
would refuse the application for leave to appeal the
sentence.

[1] The distinction between new
and fresh evidence is described by McMurdo P in R v Katsidis; ex parte A-G
(Qld) [2005] QCA 229 at [2].

[2] R v DCQ [2025] QCA 146 per Bowskill CJ at [41], quoting Betts v The Queen (2016) 258 CLR 420 at
425-426 [10]. See also [2025] QCA 146 at [43]; Criminal Code (Qld) s
671B(1).

[3] Dr Kovacevic reported that the
applicant was brought to the interview by members of the Prison Special Response
Team wearing helmets
and other protective equipment. The applicant was
handcuffed. The applicant was left facing the wall until the officers had
exited
and only then was permitted to turn towards the video-conference
screen.