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[2025] QCA 182
respondent. Application for leave to appeal against sentence refused.
The Court of Appeal would not reconsider the sentence using new psychological or other evidence that had not been before the District Court. The applicant’s claim that the aggravated-offence characterisation was procedurally defective was not supported by evidence in the lower courts and could not be repaired on a strict appeal. Considering the sentencing material that was before the District Court, the Court of Appeal found no reasonable argument that the two-month prison sentence was manifestly excessive. It refused leave to appeal.
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2,297 words · generated 07/10/2026
BEV applied to the Queensland Court of Appeal for leave to appeal a sentence imposed by the District Court after a sentence appeal from the Magistrates’ Court. The Court of Appeal refused leave. The principal reasons were that the proposed appeal would be a strict appeal, which did not permit the applicant to use new evidence to establish error, and that the sentence could not reasonably be characterised as manifestly excessive on the record that had been before the District Court ([19]–[24]).
1 cited instrument linked from this judgment.
The offending occurred on 1 May 2022. BEV was subject to a domestic violence order originally made on 10 March 2020 and varied on 1 March 2022. His former partner, the aggrieved named in the order, attended his home while returning the parties’ children. She raised concerns about child-contact arrangements and the children having a stable routine. BEV became upset and began a verbal argument. The children were present. When the aggrieved indicated that she intended to leave, BEV became more enraged, beat his hands on his chest, and stood in front of her when she tried to leave ([2]–[4]). Police attended after receiving reports of an argument and the sound of something being punched. They found the aggrieved upset and crying, and took BEV into custody ([5]).
On 3 May 2022, BEV pleaded guilty to contravening the varied order. The charge was framed as an aggravated offence under s 177(2)(a) of the Domestic and Family Violence Protection Act 2012 (Qld) ([6]–[7]). The sentencing material included a series of earlier contraventions involving the same aggrieved. These had resulted in a recognisance, a fine, probation and community service, with no convictions recorded for those matters ([8]). BEV was subject to probation and community service orders when he committed the present offence. Although the offending apparently gave rise to potential breaches of those orders, no breach proceedings had been commenced by the time of the Magistrates’ Court sentencing ([9]).
The Magistrates’ Court imposed three months’ imprisonment, followed by two years’ probation, and recorded a conviction. It also revoked and resentenced BEV for earlier matters ([12]). BEV appealed sentence under s 222 of the Justices Act 1886 (Qld). The District Court treated the appeal as a rehearing. It was common ground there that the Magistrates’ Court should not have resentenced BEV for the earlier matters without breach proceedings. The District Court judge set aside the Magistrates’ Court orders and imposed two months’ imprisonment for the 1 May offending. She declared 67 days already served as time served under that sentence and recorded a conviction ([14], [17]).
BEV then sought leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld). His proposed ground was that the sentence was manifestly excessive, relying in part on further mental-health evidence and an affidavit concerning alleged failure to give notice of prior convictions ([18]–[19], [22]). The Court of Appeal refused the application to adduce that further evidence and refused leave to appeal.
The controlling procedural distinction was between a rehearing and a strict appeal. The District Court had heard BEV’s earlier sentence appeal by way of rehearing. The proposed further appeal to the Court of Appeal would not be another rehearing. As Bond JA explained, the Court of Appeal’s sole duty would be to determine whether the District Court had made an error, based on the material that was before the District Court ([19]). That meant the proposed affidavits could not be used to establish that the District Court had erred by failing to consider facts it had never received.
The Court relied on McDonald v Queensland Police Service [2017] QCA 255, which it said summarised the applicable principles at [39] ([19]–[20]). The judgment states that leave to appeal is discretionary and not granted lightly where the applicant has already had two judicial hearings. A detectable error will not ordinarily be enough, by itself. Leave will usually be granted only if there is a reasonable argument that an error needs correction and an appeal is necessary to correct substantial injustice ([20]). The Court’s task was therefore not to conduct a fresh sentencing exercise, but to consider whether an arguable error by the District Court warranted appellate intervention.
The first proposed argument concerned the aggravated character of the offence. BEV argued that there was no evidence that he had received the notice of prior convictions required by s 47(5) of the Justices Act 1886 (Qld). The Court did not determine that the notice had in fact been given. Instead, it addressed the evidentiary and procedural difficulty: no evidence establishing non-compliance had been before either the Magistrates’ Court or the District Court. If the point were to be taken, Bond JA said, it had to be raised below and supported by evidence. An affidavit tendered for the Court of Appeal could not supply that missing foundation on a strict appeal ([22]).
The second argument was that any sentence involving imprisonment, and therefore a recorded conviction, was unreasonable or plainly unjust. The Court considered the sentencing material that had been before the District Court judge. That included the circumstances of the incident; the aggrieved’s likely intimidation and distress, notwithstanding the absence of actual or threatened violence towards her; the aggravated charge; repeated recent contraventions involving the same aggrieved; the applicant’s existing probation and community service orders; mitigation and rehabilitation steps; and the time he had already spent in custody ([16]–[17]). On that material, the District Court judge had concluded imprisonment was within the proper exercise of sentencing discretion. The Court of Appeal found no reasonable argument to the contrary ([23]).
Bond JA also referred to CDL v Commissioner of Police [2024] QCA 245 for the Court’s recognition of the seriousness of continued domestic violence offending ([23]). The judgment does not develop a separate general rule from CDL. It uses the case as support for the seriousness of repeated offending in assessing whether a prison sentence was arguably outside the proper sentencing discretion.
The judgment does not purport to announce a new general sentencing principle. Its legal significance, on the reasons provided, is primarily procedural and case-specific: it applies the strict-appeal principles summarised in McDonald to an application for leave following a District Court sentence appeal ([19]–[20]).
Before the Court of Appeal application, BEV had already had two sentencing hearings. The Magistrates’ Court imposed sentence at first instance, and the District Court heard an appeal by way of rehearing. At the District Court stage, the judge could consider the sentencing matter as a rehearing, and identified an error in the Magistrates’ Court’s treatment of earlier orders where breach proceedings had not been commenced ([14]). The District Court then set aside the earlier orders and imposed its own sentence for the 1 May offending ([17]).
At the Court of Appeal stage, the nature of the proposed review was different. The Court would assess the District Court’s decision for error on the material that had been before that court. It would not hear the matter afresh or use new evidence to construct a case that the District Court had erred ([19]). That distinction explains why the applicant’s proposed psychological report and affidavits could not be used to establish manifest excess, and why the alleged notice defect could not be proved for the first time through an affidavit in the Court of Appeal ([19], [22]).
The judgment also restates the leave considerations drawn from McDonald: leave is discretionary; it is not granted lightly after two judicial hearings; and a mere error is not ordinarily enough. The usual focus is whether there is a reasonable argument of error and whether the appeal is needed to correct substantial injustice ([20]). The judgment applies those considerations rather than altering them.
On sentence, the decision confirms only the result for this record. The Court accepted that imprisonment was within the District Court judge’s discretion in light of the repeated contraventions and other sentencing matters identified in the reasons ([16]–[17], [23]). It does not establish that imprisonment is required for every contravention of a domestic violence order, nor does it set a general sentencing range. Those broader propositions are not stated in the judgment.
At [19], Bond JA explains that the Court of Appeal’s “sole duty” would be to determine whether the District Court erred “on the basis of the material before the District Court”. In plain English, the Court was not going to reopen the sentencing facts or consider new evidence as though it were hearing the case for the first time. The question was whether the District Court had made an error using the information it actually had.
At [20], the judgment states that leave will “usually be granted only where an appeal is necessary to correct a substantial injustice” and there is a reasonable argument that an error needs correction. This describes why showing a possible imperfection is not necessarily sufficient. An applicant must meet the leave threshold, which requires an arguable error and a reason why appellate intervention is needed to avoid substantial injustice.
At [22], the Court says the alleged failure to give notice had to be taken below and supported by evidence. In plain English, the Court was not prepared to decide a factual procedural complaint based on a new affidavit at the strict-appeal stage, where the lower courts had not received evidence establishing it.
At [23], Bond JA says there was “no basis” to regard the sentence as manifestly excessive. The Court reached that view after excluding the further evidence and considering the material that had been before the District Court. The conclusion was about this sentence on this record, not a declaration that imprisonment must follow in all comparable cases.
Finally, at [24], the order is direct: “The application for leave to appeal against sentence should be refused.” The Court did not alter the District Court sentence.
The decision is most directly relevant to applications for leave to appeal to the Queensland Court of Appeal from a District Court judgment made in its appellate jurisdiction, where the applicant seeks to rely on fresh evidence to show that the District Court made an error. The key procedural feature is that the proposed Court of Appeal proceeding is a strict appeal, not a rehearing ([19]).
It is also relevant where a proposed ground depends on a factual allegation, such as failure to provide a statutory notice, but there was no evidence of that allegation before the courts below. The judgment indicates that the applicant cannot avoid that evidentiary gap by tendering a new affidavit in the strict appeal described here ([22]).
For sentencing matters, the case is relevant where a sentence is challenged as manifestly excessive after a District Court rehearing, and the record includes repeated contraventions of domestic violence orders involving the same aggrieved, existing community-based orders, and consideration of mitigation and time in custody. The Court treated those matters as relevant parts of the sentencing context ([16]–[17], [23]). It does not provide a sentencing tariff or establish a rule that imprisonment is mandatory in such cases.
The decision may also be relevant where leave is sought after two prior judicial hearings. The Court’s discussion of McDonald emphasises that leave is not lightly given in that setting and that an arguable error and substantial injustice are central considerations ([20]).
The judgment provides no information about how later courts have treated BEV v Commissioner of Police [2025] QCA 182. It was delivered on 26 September 2025, and the supplied text contains no later decisions discussing or applying it. Any account of subsequent treatment would therefore go beyond the material available here.
The judgment itself identifies earlier authorities. It applies the principles summarised in McDonald v Queensland Police Service [2017] QCA 255 at [39], particularly the strict-appeal limitation described at [39(e)] ([19]–[20]). It also cites CDL v Commissioner of Police [2024] QCA 245 in connection with recognition of the seriousness of continued domestic violence offending ([23]). The reasons do not say that either authority was overruled or distinguished.
The judgment does not decide whether the alleged notice under s 47(5) of the Justices Act 1886 (Qld) was in fact given. It decides that the alleged failure had not been established by evidence before the lower courts, and that new evidence could not be received on the strict appeal ([22]). The factual question therefore remains unanswered in this judgment.
Nor does the decision specify the circumstances in which fresh evidence might be admitted in a different kind of appeal or under a different procedural rule. Its holding concerns the proposed appeal before it and the strict-appeal principles it applied ([19]).
The reasons do not set out a general sentencing range for aggravated contraventions of domestic violence orders, or decide that imprisonment is appropriate in every case involving repeated contraventions. The sentence assessment is tied to the factors identified in this record, including repeated offending involving the same aggrieved, the existing orders, the circumstances of the incident, mitigation, rehabilitation, and time already spent in custody ([16]–[17], [23]).
Finally, the judgment does not elaborate on the relationship between the aggravated-offence charge under s 177(2)(a) of the Domestic and Family Violence Protection Act 2012 (Qld) and the notice issue raised under s 47(5) of the Justices Act 1886 (Qld). It resolves the appeal point procedurally because the alleged non-compliance was not established below and new evidence could not be used to establish it on the strict appeal ([22]).
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: BEV v Commissioner of Police [2025] QCA 182
PARTIES: BEV / (applicant) / v / COMMISSIONER OF POLICE / (respondent)
FILE NO/S: CA No 156 of 2022 / DC No 1150 of 2022
DIVISION: Court of Appeal
PROCEEDING: Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT: District Court at Brisbane – Unreported, 7 July 2022 (Wooldridge KC DCJ)
DELIVERED ON: 26 September 2025
DELIVERED AT: Brisbane
HEARING DATE: 10 February 2025
JUDGES: Bond and Brown JJA and Williams 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 – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to contravention of a domestic violence order – where evidence revealed multiple previous contraventions of such orders in respect of the same aggrieved – where the applicant was sentenced in the Magistrates Court to three months’ imprisonment to be followed by two years’ probation – where the applicant successfully appealed the sentence to the District Court pursuant to s 222 of Justices Act 1886 (Qld) – where the applicant was re-sentenced to 2 months’ imprisonment with a conviction recorded – where the applicant sought leave to appeal to the Court of Appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) – where the applicant contended that any form of sentence which involved the imposition of a period of imprisonment and therefore the mandatory recording of a conviction was manifestly excessive – where an application for leave to adduce further evidence was rejected because the appeal was a strict appeal – where the sentence imposed was not manifestly excessive
COUNSEL: P J Wilson for the applicant / M A Green for the respondent
SOLICITORS: Gilshenan & Luton Legal Practice for the applicant / Director of Public Prosecutions (Queensland) for the respondent
BOND JA: For reasons which follow, the applicant’s application pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) for leave to appeal from a sentence imposed in the District Court on appeal from the Magistrates’ Court should be refused.
As at 1 May 2022, the applicant was the subject of a domestic violence order which had originally been made on 10 March 2020, but which had been varied on 1 March 2022. The applicant had been present when the order was made. The aggrieved party named in the order was the applicant’s ex-partner.
On 1 May 2022, the aggrieved had attended at the applicant’s home in the context of returning the two children of the relationship. Once there, the aggrieved had raised with the applicant concerns that she had around the child contact arrangements, and the need she felt for the children to have a stable routine. She also mentioned that one of the children had reportedly not wanted to stay with the applicant that day.
This upset the applicant and he began a verbal argument with the aggrieved. The children were present in the house at the time. The aggrieved indicated that she intended to leave the premises due to the applicant’s behaviour. This caused the applicant to become more enraged, and he beat his hands on his chest in anger, in front of the aggrieved. When the aggrieved attempted to leave, the applicant stood in front of her to prevent her from doing so.
Police received reports of an argument, and the sound of the punching of something, and attended at the address. Once there, the police spoke with the aggrieved who was upset and crying. She reported that there had been an argument and that the applicant was inside the house. Police located the applicant in the dwelling and took him into custody. He remained in custody until he appeared in the Magistrates’ Court on 3 May 2022.
On 3 May 2022 the applicant faced a bench charge formulated as follows:
“DOMESTIC AND FAMILY VIOLENCE PROTECTION ACT 2012 177(2)(A) CONTRAVENTION OF DOMESTIC VIOLENCE ORDER (AGGRAVATED OFFENCE)
That on the 1st day of May 2022 at Tingalpa in the State of Queensland [the applicant] being a respondent against whom a domestic violence order had been made contravened the order namely the varied protection order made on the 1st day of March 2022 in the Magistrates Court at Wynnum and [the applicant] was present in court when the order was made”
On that day the applicant was convicted on his own plea of guilty to that charge.
During the sentencing proceeding, the Magistrate’s attention was drawn to the applicant’s history of being dealt with in the Magistrates’ Court for previous breaches of domestic violence orders in respect of the same aggrieved, namely:On 1 September 2021, in respect of a contravention on 31 August 2021 of a domestic violence order, he was placed on a recognisance to be of good behaviour for a period of 12 months, no conviction being recorded.On 8 November 2021, in respect of a contravention on 9 September 2021 (being an aggravated offence), he was fined $800, no conviction being recorded.On 1 March 2022, in respect of a contravention on 25 February 2022 (being an aggravated offence), he was sentenced for the new charge and resentenced for the 1 September sentence. The recognisance was forfeited, and he was placed on probation for 12 months, no conviction being recorded.On 28 March 2022, in respect of two contraventions in March 2022, he was sentenced to 60 hours community service to be completed within one year, no conviction being recorded.
At the time of committing the offence on 1 May 2022 and of appearing before the Magistrates’ Court on 3 May 2022, the applicant was therefore subject to a probation order and a community service order. His offending on 1 May 2022 would apparently have given rise to a breach of the probation order, and a breach of a community service order. As at the time of sentencing on 3 May 2022, no breach proceedings had been commenced.
Counsel for the prosecution submitted that the appropriate sentence for the charge before the Court was 6 to 9 months’ imprisonment.
The applicant’s legal representative advanced the following submissions:this offending all came in the context of the applicant’s own trauma and his past childhood trauma; he grew up in Lebanon and he was witness to the turmoil that was going on in that country during that time;he had mental health issues as a consequence of being exposed to associated domestic violence in his own home when he was child;he had been diagnosed with past childhood trauma, depression, anxiety, and panic attacks; was currently seeing psychologists and taking medication;there were underlying issues with respect to deportation from Australia, because he was “currently on a partner’s visa”;he could not submit that the prosecution submission of 6 to 9 months’ imprisonment was outside the appropriate range;an appropriate sentencing disposition might be to impose a period of imprisonment between six to nine months, release the applicant immediately upon parole, fined and then allow the probation order to continue with that ongoing support.
The magistrate sentenced the applicant to three months’ imprisonment to be followed by two years’ probation. As part of the sentence, the learned magistrate revoked the previously imposed orders for community service and probation and resentenced the applicant for the offences for which those orders had been imposed. A conviction was recorded.
“Sentence is too excessive based on evidence provided during the trial on 3 May 2022 and further supporting evidence to be adduced in this matter, regarding the mental health of the defendant at the time of the offence and trial.”
The “further supporting evidence” to which reference was there made was contained in an affidavit by the applicant and an affidavit by a psychologist which exhibited a psychological report. That evidence was the subject of an application for leave to adduce further evidence. However, that application must be rejected. The principles which apply to appeals to this Court from judgments of the District Court in its appellate jurisdiction are not in doubt, are summarised in McDonald v Queensland Police Service [2017] QCA 255 at [39] and have been applied in many cases since. Relevantly, if leave to appeal were to be granted, the appeal would be an appeal in the strict sense and not an appeal by way of rehearing, with the result that this court’s sole duty would be to determine whether error had been shown on the part of the District Court, on the basis of the material before the District Court: see McDonald v Queensland Police Service at [39(e)]. Accordingly, the applicant could not rely on the alleged further supporting evidence to demonstrate manifest excess.
It remains to assess the application for leave to appeal having regard to the principles summarised in McDonald v Queensland Police Service. First, this Court’s discretion to grant or refuse leave to appeal is unfettered, exercisable according to the nature of the case, but leave to appeal will not be given lightly, given that the applicant has already had the benefit of two judicial hearings. Second, the mere fact that there has been an error, or that an error can be detected in the judgment is not ordinarily, by itself, sufficient to justify the granting of leave to appeal – leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.
The applicant advanced two grounds in support of the contention that the sentence imposed was manifestly excessive.
First, the applicant raised a ground not previously advanced, which if it had merit should have been raised as a ground of specific error. He argued that there was no evidence that a notice alleging the fact of prior convictions had been provided to the applicant before the initial Magistrates’ Court hearing in compliance with s 47(5) of the Justices Act. On that basis of non-compliance, he sought to argue that it was wrong to characterise the offence as an aggravated offence. There was no merit in this argument. If the point was ever to be taken, it had to be taken below and by reference to evidence which established the relevant non-compliance. There was no such evidence before either the magistrate or the District Court judge. Accordingly, the point cannot now be agitated on a strict appeal. The applicant sought leave to adduce an affidavit by him that sought to prove that he had not been given the requisite notice, but for reasons already expressed, that affidavit could not be received on a strict appeal.
BEV
Commissioner of Police [2025] QCA 182
Application for leave to appeal against sentence refused.
On 18 May 2022 the applicant appealed the sentence pursuant to s 222 of Justices Act 1886 (Qld) on the ground that the sentence was manifestly excessive. The appeal was heard in the District Court at Brisbane on 7 July 2022.
The learned District Court judge noted that the appeal before her was an appeal by way of rehearing. It was common ground before her Honour that the magistrate should not have re-sentenced in the way he had absent the commencement of proceedings alleging breach of the previous orders. Accordingly, her Honour accepted that discretionary error by the magistrate had been established. The question which remained was what sentence ought to be imposed for the offending which had taken place on 1 May 2022.
The applicant’s submission was that his offending did not warrant the imposition of a term of imprisonment. The respondent submitted that, taking into account the time spent in custody by the applicant to the date of the hearing (1 May 2022 – 7 July 2022), the applicant should be re-sentenced to a sentence in the order of 6 months’ imprisonment with immediate release on parole, or alternatively, that period of imprisonment should be wholly suspended for an operational period of 18 months.
Her Honour’s sentencing remarks reveal that her Honour noted and took into account:the circumstances of the offending;the fact that even though there was no actual or threatened violence towards the aggrieved, she must have been intimidated and distressed;the following circumstances of aggravation:the fact of the charge itself (namely the aggravated offence under s 177(2)(a)), revealed a circumstance of aggravation, namely that the applicant had previously been convicted within the relevant period of the offence of contravention of a domestic violence order;the occasions in the months leading up to the offence in which the applicant had appeared before the Court and been dealt with for other offences of contravention of a domestic violence order concerning the same aggrieved;the applicant was the subject of probation and community service orders at the time of the offending;the terms of s 9 of the Penalties and Sentences Act, including in particular ss 9(1) and 9(10A);the various matters in mitigation which had been placed before the magistrate at first instance, and identified in the submissions before her, including, but not limited to the applicant’s plea of guilty and the steps the applicant had taken towards rehabilitation; andthe fact that as a result of the sentences that were imposed upon the applicant on 3 May 2022, the applicant had been in custody for a period of two months and four days.
Her Honour concluded that a sentence of imprisonment was well within the proper exercise of her sentencing discretion. Her Honour set aside the orders made in the Magistrates’ Court; sentenced the applicant to 2 months’ imprisonment for the offending on 1 May 2022 with the 67 days already served declared as time served under that sentence. Her Honour recorded a conviction.
As has been mentioned, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) the applicant now seeks leave to appeal to this Court from the sentence imposed by the learned District Court judge. The application relies on a single proposed ground of appeal, namely that the sentence was manifestly excessive. The application put the ground in this way:
Second, the applicant also sought to justify the conclusion of manifest excess in the more conventional way by suggesting that any form of sentence which involved the imposition of a period of imprisonment and therefore the mandatory recording of a conviction was unreasonable or plainly unjust. But in the present case it does not seem to me that there is a reasonable argument in support of that proposition. The seriousness of continued domestic violence offending has been explicitly recognised in this court: see CDL v Commissioner of Police [2024] QCA 245. Having regard to the considerations which were relevant to sentence and shown on the material before the learned District Court judge, her Honour was correct to regard the imposition of a period of imprisonment as within the proper exercise of her discretion. The argument to the contrary before this Court relied heavily on the reception of the impermissible further evidence. Once it is appreciated that the further evidence could not be received with a view to identifying error, the argument became hopeless. There is no basis to regard the sentence imposed by the learned District Court judge as manifestly excessive.
The application for leave to appeal against sentence should be refused.
BROWN JA: I agree with Bond JA.
WILLIAMS J: I have read the reasons of Bond JA and agree with those reasons and the proposed order.