The Queensland Court of Appeal refused leave to appeal against a sentence of 18 months imprisonment suspended after 4 months for occasioning grievous bodily harm, where the applicant kicked the complainant in the head after the complainant had fallen to the ground. The Court held that the sentencing judge did not err in requiring the applicant to serve some actual time in custody despite provocation, distinguishing R v Cuff on the facts. The case confirms that kicking a person in the head while on the ground, even following severe provocation, may warrant a period of actual custody rather than a wholly suspended sentence.
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