//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] ACTCA 52
respondent. The appeal was dismissed. The Court held that the DPP had not established error or manifest inadequacy in the individual sentences, their structure, or the overall sentence.
The Court of Appeal accepted that the offending was extremely serious but held that seriousness alone did not establish that the sentences were manifestly inadequate. The DPP identified no specific error in the sentencing reasons and did not show that the sentences fell outside an established pattern. The Court rejected reliance on added-up maximum penalties as a useful measure because the total depends on how conduct is charged and must be considered alongside totality. It also considered the mix of concurrent and consecutive sentences reasonable on the circumstances described. The appeal was dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,406 words · generated 06/10/2026
In DPP v Hojlund [2025] ACTCA 52, the ACT Director of Public Prosecutions appealed against sentences imposed after Damian Hojlund pleaded guilty to sexual and related offences against two victims. The Court of Appeal was Taylor and Bromwich JJ and Muller AJ. The appeal was heard and dismissed on 4 November 2025, with reasons published on 9 December 2025.
2 cited instruments linked from this judgment.
The victims were unconscious when the relevant sexual conduct occurred. The Court’s account records that both had been affected by drugs and did not know at the time what had happened to them ( [1] ). The male victim was in a sexual relationship with Hojlund. On two occasions between February and June 2021, Hojlund had penile-anal intercourse with him while he was unconscious. Hojlund later told him what had happened, and filmed the second incident. The Court noted that Hojlund had previously told the victim of a fantasy involving knocking someone out, having sex with them and filming it ( [9]–[10] ).
The female victim was Hojlund’s intimate partner for about a month in September and October 2022. In the early hours of 23 September 2022, during an incident lasting about 80 minutes, Hojlund administered drugs to her, penetrated her vaginally seven times, anally once and orally twice, and filmed the conduct. The recorded conduct also included spitting on and slapping her. She later found the video footage on Hojlund’s phone ( [11]–[12] ).
Hojlund pleaded guilty to the charges. The offences relating to the female victim included three charges of aggravated sexual intercourse without consent and one charge concerning aggravated intimate observations or capturing intimate images. Family violence, arising from the intimate-partner relationship, aggravated the relevant offences. There was also a scheduled aggravated common assault charge. For the male victim, Hojlund pleaded guilty to one rolled-up charge of sexual intercourse without consent covering the two incidents. The Court noted a scheduled image offence connected to filming the second incident against the male victim, which was listed to be taken into account in sentencing on the female-victim count; it said nothing turned on that distinction for this appeal ( [2]–[5] ).
The sentencing judge imposed individual sentences totalling almost 17 years and 3 months after the guilty-plea discounts, before applying totality. The final head sentence was 9 years, 3 months and 11 days, with a non-parole period of 6 years ( [14]–[15] ). The DPP argued that the individual sentences and the total sentence were manifestly inadequate. It did not allege an identifiable error in the sentencing judge’s reasons ( [6], [26] ).
The Court began with the limits on appellate intervention. Under House v the King, it is not enough that an appeal court would itself have imposed a different sentence. The appellate court must be satisfied that there was error in the exercise of the sentencing discretion. A sentence that is unreasonable or plainly unjust may support an inference of error, even if the error cannot be identified from the reasons themselves ( [16]–[18] ).
The Court explained that manifest inadequacy is a conclusion, not a requirement to identify a particular mistaken step in the sentencing reasoning. But the word “manifest” matters. In a duration appeal with no identified error, the result must be plainly and evidently inadequate enough to support an inference of latent error. The Court noted that a sentence that was insubstantial compared with what was obviously appropriate might readily meet that description. Where there is no such clear feature, the appellant will generally need to do more to show why the result must reflect error ( [19]–[24] ).
That distinction framed the appeal. The DPP accepted that the sentencing judge’s reasons were unimpeachable on their face and relied on the result itself. The Court considered the sentences substantial, not obviously inadequate. It referred to the sentencing judge’s detailed treatment of the offending, the respondent’s circumstances, the victims’ harm, the guilty pleas, and totality ( [13]–[15], [26]–[30] ).
The Court also examined the DPP’s comparative-sentence argument. Comparative cases can assist as yardsticks, but they do not establish fixed tariffs. The three cases relied on below involved sentences ranging from 3 years and 5 months to 9 years and 10 months. The DPP said Hojlund’s offending was more serious, but did not explain how those cases established a sentencing pattern that the sentence in this case impermissibly departed from. The Court also observed that the sentencing judge had addressed the differences between the cases and the limits on comparison, referring to Hili, Pham and Dalgliesh ( [31]–[33] ).
The DPP’s reliance on aggregated maximum penalties did not fill that gap. It identified a total of 48 years for the female-victim offences, or 60 years if the male-victim offence was added. The Court said that adding maximum penalties in this way was unfamiliar to Australian law and did not account for totality. The possible aggregate would also change substantially according to whether the same conduct was charged as one rolled-up count, several counts, or a count for each act of penetration. The underlying conduct would not become more serious merely because it was divided into more charges ( [34]–[37] ).
Finally, the Court rejected the claim that concurrency made the total sentence manifestly inadequate. The male-victim sentence was wholly consecutive to the sentence for the most serious offence against the female victim. The remaining structure included both concurrency and consecutiveness for the offences against the female victim, all committed as part of one course of conduct over about 80 minutes. The Court accepted that totality can justify concurrent sentences, including where individual sentences might otherwise be inadequate in combination. The DPP did not challenge the use of the principle in Mill as such ( [15], [38]–[40] ).
The Court therefore concluded that the DPP had not established that the sentences were inadequate, either individually or as a whole. It stressed that the offending was extremely serious, while holding that the sentencing judge’s result remained within the available sentencing discretion ( [42]–[44] ).
The judgment presents itself as an application and explanation of established appellate sentencing principles, not as a change to the law. Its starting point is House v the King: an appeal court cannot substitute its preferred sentence merely because it would have reached a different result ( [16]–[18] ).
The Court drew on Dinsdale v The Queen and Hili v The Queen for the proposition that manifest inadequacy is a conclusion which may not admit of lengthy exposition. It may be possible to express the conclusion without tracing an identifiable error in the sentencing judge’s reasoning. The conclusion still has to be justified by the result being unreasonable or plainly unjust ( [19]–[21] ).
The judgment’s practical clarification is directed to cases where the appeal concerns duration only, the sentencing reasons disclose no particular error, and the sentence is substantial. In that setting, simply describing the offending and asserting that a higher sentence should have been imposed may not demonstrate manifest inadequacy. Comparative cases may provide a useful means of showing that the result lies outside a proper range, but they must do more than invite a different assessment of seriousness. They are yardsticks rather than binding numerical standards ( [22]–[24], [31]–[33] ).
The decision also reinforces that maximum penalties cannot sensibly be aggregated without regard to the way charges are framed and the totality principle. The Court did not say maximum penalties are irrelevant. Rather, it rejected their aggregate as a self-sufficient measure of inadequacy in this appeal, because the aggregate could be altered by charging choices without changing the seriousness of the conduct ( [34]–[37] ).
On concurrency, the judgment restates that totality may be achieved by concurrent as well as consecutive sentences. The relevant question is not whether each sentence adds fully to the next, but whether the sentence structure, viewed as a whole, has been shown to be manifestly inadequate. The Court found no such showing on these facts ( [38]–[40] ).
At [17], the Court states that an appeal cannot succeed just because the appeal judges would have taken a different sentencing approach. In plain English, the appeal is about whether the sentencing judge made an error, not whether the appeal court would have chosen another number.
At [22], the Court explains that “manifest” inadequacy requires an outcome so plainly lenient that it supports an inference of a hidden error of principle, even if the reasons do not disclose one. This is the central explanation for why the DPP had to show more than that a higher sentence might have been appropriate.
At [23], the Court recognises that comparative sentences may help demonstrate that a sentence falls outside what was properly available. Put simply, examples of other sentences can be evidence of a pattern, but their existence or numerical difference does not establish inadequacy by itself.
At [35], the Court gives a charging example. The same conduct could produce very different totals of maximum penalties depending on whether it was charged as one rolled-up offence or many separate offences. In plain English, adding the maximum penalties together may measure the charging structure as much as the criminality.
At [40], the Court notes that the totality principle permits concurrent sentences and refers to Mill v The Queen. Concurrency is not automatically a sign that the court has failed to recognise separate offending or harm. It must be assessed as part of the overall sentence structure.
At [43], the Court acknowledges the extreme seriousness of the offending but says the sentence remained within the sentencing judge’s discretion. The result reflects the distinction between condemning the conduct and deciding whether the appellate threshold for intervention has been met.
The reasoning is particularly relevant to Crown sentence appeals that assert manifest inadequacy without alleging a specific error in the sentencing reasons. The judgment addresses the difficulty of challenging sentence duration where the appeal depends on the overall result being obviously too low, rather than on an identifiable error such as overlooking a relevant factor ( [21]–[24], [26]–[30] ).
It is also relevant where the sentence is substantial, the sentencing judge has addressed the material circumstances, and the appellant relies on the seriousness of the offending without showing how the outcome falls outside established sentencing patterns. The Court did not establish that substantial sentences cannot be manifestly inadequate. Its point was that substantiality and the absence of a clear error make the required demonstration more demanding ( [22]–[24], [29]–[33] ).
The decision may assist where an appellant relies on comparative sentences. A lawyer examining such an argument would need to distinguish between cases that merely provide examples and cases that support an identifiable sentencing pattern. The judgment’s reasoning cautions against treating comparisons as fixed tariffs, especially where the offences, maximum penalties and circumstances differ ( [31]–[33] ).
It also applies to cases in which the appellant seeks to compare the sentence with an aggregate of maximum penalties. The judgment identifies a potential problem where multiple acts could be charged in different ways, producing different aggregate maxima without changing the underlying conduct. The Court considered that problem alongside totality and the actual sentencing structure ( [34]–[37] ).
Finally, the decision concerns arguments that concurrency has made a total sentence inadequate. It is relevant where offences form part of a course of conduct, but the judgment does not establish that concurrency is always appropriate in such cases. It assesses the particular structure here, including that the male-victim sentence was wholly consecutive to the most serious female-victim sentence ( [15], [39]–[40] ).
The supplied judgment contains no citations to later decisions treating DPP v Hojlund. The judgment itself was decided on 4 November 2025 and its reasons were dated 9 December 2025. On the material provided, no conclusion can be drawn about how later courts have applied, followed, distinguished or otherwise treated it.
The judgment does, however, explain how the Court used earlier authorities. House v the King supplied the general appellate-intervention framework. Dinsdale and Hili supported the description of manifest inadequacy as a conclusion that need not involve expansive reasoning. Tuifua was relied on for the role comparative sentences can play in duration appeals. Mill supported the use of concurrency in applying totality. Pham and Dalgliesh were mentioned in the context of the sentencing judge’s approach to comparative decisions ( [16]–[24], [31]–[33], [40] ).
The judgment also cites R v Nicholas; R v Palmer for the proposition that appellate courts must respect the sentencing judge’s wide discretion ( [18] ). Those citations establish the legal foundation the Court applied in Hojlund; they are not evidence of subsequent treatment of Hojlund.
The judgment does not prescribe a numerical threshold for when a substantial sentence becomes manifestly inadequate. It instead emphasises the governing standard and the need to assess the result in context. The precise weight of sentence duration, offence gravity, comparable decisions and sentencing structure will remain fact-dependent ( [22]–[24], [29]–[33] ).
It also does not provide a general method for deciding when comparative cases demonstrate an established pattern. The Court held that the three cases relied on in this appeal did not do so, but the supplied reasons do not set out a comprehensive test for the number, similarity or consistency of cases needed to establish a pattern ( [32]–[33] ).
The Court rejected the particular aggregate-maximum argument but did not rule out every possible use of maximum penalties in assessing a sentence. The reasons address the DPP’s method of adding maximum penalties and explain why it was unreliable in this case. They do not suggest that maximum penalties have no relevance to sentencing analysis ( [34]–[37] ).
The Court also did not decide a separate challenge to the non-parole period. It records that no separate complaint was made and comments on supervision and possible release after six years only for completeness ( [41] ). Nor does the decision establish a general rule about concurrency for multiple sexual offences, or about sentences involving unconscious victims. Its conclusion depends on the offences, the sentencing reasons, the course-of-conduct context and the particular appeal arguments before it.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: DPP v Hojlund Citation: [2025] ACTCA 52 Hearing Date: 4 November 2025 Decision Date: 4 November 2025 Reasons Date: 9 December 2025 Before: Taylor and Bromwich JJ, Muller AJ Decision: The appeal was dismissed. Catchwords: APPEAL – CRIMINAL LAW – Crown appeal against sentence – sexual intercourse without consent and related offending – separate instances of offending against two victims who were unconscious – whether sentence manifestly inadequate – where no overt error asserted in the sentencing reasons – where substantial term of imprisonment imposed – where some concurrency provided in sentences in application of principle of totality – manifest inadequacy not demonstrated – appeal dismissed Legislation Cited: Crimes Act 1900 (ACT), ss 54(1), 61B Family Violence Act 2016 (ACT) Cases Cited: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Hili v The Queen [2010] HCA 45; 242 CLR 520 House v the King [1936] HCA 40; 55 CLR 499 Mill v The Queen [1988] HCA 70; 166 CLR 59 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Pham [2015] HCA 39; 256 CLR 550 R v Tuifua [2023] ACTCA 6 Texts Cited: ACT DPP, The Prosecution Policy of the Australian Capital Territory, 1 April 2021 at [2.4] Parties: Director of Public Prosecutions (Appellant) Damian Arne Hojlund (Respondent) Representation: Counsel V Engel SC (Appellant) J White SC (Respondent) Solicitors ACT Director of Public Prosecutions Legal Aid ACT (Respondent) File Number: AC 23 of 2025 Decision Under Appeal: Court/Tribunal: Supreme Court of the Australian Capital Territory Before: Baker J Date of Decision: 22 May 2025 Case Title: DPP v Hojlund (No 2) Citation: [2025] ACTSC 211 Court File Number(s): SCC 202 of 2023 SCC 203 of 2023 THE COURT: Introduction
This is an appeal by the Director of Public Prosecutions for the Australian Capital Territory (appellant) from a sentence imposed by a judge of this Court for sexual and related offences committed at separate times by the respondent against an 18-year-old female victim and against a male victim of unspecified age, following guilty pleas: DPP v Hojlund (No 2) [2025] ACTSC 211. The respondent is now aged 30. Each victim was not conscious when the offending took place, by reason of them both being affected by drugs, such that neither became aware of what had happened until later. The Director contended that the sentence imposed for these offences by the sentencing judge was manifestly inadequate. The appeal was dismissed after a short adjournment following the conclusion of submissions on 4 November 2025. These are the reasons for that decision.
In relation to his offending against the female victim, the respondent pleaded guilty to three charges of aggravated sexual intercourse without consent contrary to s 54(1) of the Crimes Act 1900 (ACT), and one charge of aggravated intimate observations or capturing intimate images contrary to s 61B of the Crimes Act. These charges all related to conduct that occurred during one protracted incident which took place over about 80 minutes in the early hours of 23 September 2022.
The sexual intercourse offences were aggravated offences because the female victim was, at the time, an “intimate partner” of the respondent, which meant that the offending fell within the definition of, and therefore involved, “family violence” as defined under the Family Violence Act 2016 (ACT). By reason of this aggravation, the maximum penalty for each offence was increased: by three years to 15 years’ imprisonment in relation to sexual intercourse without consent; and by one year to three years’ imprisonment for intimate observations or capturing intimate images. The sexual intercourse offences were also aggravated in a more general sense by reason of the manner in which they were committed. An additional charge of aggravated common assault relating to the respondent’s conduct against the female victim during the offending was placed on a schedule to be taken into account in sentencing the offender for the most serious of the three charges of aggravated sexual intercourse without consent.
The respondent pleaded guilty to one charge of sexual intercourse without consent in relation to his offending against the male victim. This offence relates to two separate incidents of offending against the male victim which occurred between February and June 2021. That was not an aggravated offence because family violence had not yet been enacted as an aggravating factor at the time of that offending.
The respondent also filmed his conduct against the male victim during the second of the incidents forming part of the charged offence. This was reflected in an additional charge of intimate observations or capturing intimate images contrary to s 61B of the Crimes Act, which was also placed on the same schedule to be taken into account when sentencing on the most serious of the three charges of aggravated sexual intercourse without consent in relation to the female victim. As such, and perhaps inadvertently, it was conduct that could be taken into account in the sentence imposed for the conduct charged in relation to the female victim, not the conduct charged in relation to the male victim, although nothing turns on that distinction in this appeal.
The overall head sentence imposed by the sentencing judge was a term of imprisonment of just over 9 years and 3 months, with a non-parole period of 6 years. The appellant contended that the sentences imposed for each individual offence are manifestly inadequate, and that the overall sentence for all the offences is manifestly inadequate. No express error was identified in the sentencing reasons by the appellant in support of that claim, and no separate objection was taken to the overall non-parole period, but it would necessarily change if the overall head sentence was to change unless the ratio between the two was not maintained.
The offending is described clearly and in detail in the sentencing reasons. Indeed, the sentencing judge’s description of the offending is clearer and easier to understand than the statement of agreed facts provided for the purposes of sentencing, and better conveys the seriousness of what took place. There is no reason to doubt that her Honour fully comprehended the matters which she so clearly and effectively described.
These reasons should be read with the sentencing reasons in order to appreciate the greater detail of what occurred. It is sufficient for present purposes to furnish only an overall summary to convey the gravamen of what took place in relation to each victim.
The relationship with and offending against the male victim
The male victim was in a sexual relationship with the respondent between about July 2020 and July 2022. The offending conduct towards the male victim took place on two separate occasions in the period from February to June 2021. The respondent told the male victim what he had done on both occasions and filmed the conduct on the second occasion. At some point during their relationship, the respondent had told the male victim that he had fantasies of knocking someone out, having sex with them and filming it. While the male victim disclosed the conduct to a police officer in June 2021, not long after the second incident, he did not wish to report the matter formally at that time.
The two bouts of offending conduct by the respondent towards the male victim on separate days, charged as a single rolled up offence, were as follows: (a) On a date sometime between about February and May 2021, the male victim consumed an unknown amount of an unknown substance at his home (most likely a drug of some kind) and lost consciousness. When he was conscious again, the respondent told him that he had engaged in penile-anal intercourse with him while he was asleep. The male victim had no independent awareness that this had taken place. (b) On a date prior to 5 June 2021, the male victim hosted a number of people at a gathering at his home, with the respondent. Many of those present consumed illicit substances, with at least some of the doses prepared and distributed by the respondent. The male victim recalled being in the lounge room and next recalled waking up alone and naked in the master bedroom. After the male victim returned to the lounge room and questioned the way that the respondent was looking at him, the respondent showed him a video of penile-anal intercourse and told the male victim that he had had sex with him while he was passed out.
The relationship with and offending against the female victim
The female victim was in an intimate relationship with the respondent for a one-month period from early September to early October 2022. The offending conduct towards the female victim took place on the night of 22 to 23 September 2022, with the sexual intercourse and filming apparently taking place in the early hours of 23 September 2022. By reference to the metadata for the recordings, the respondent filmed his conduct towards the female victim over a period of about 80 minutes, and the charges were based on what was recorded, necessarily because she had no knowledge of it occurring at the time. The female victim found the video footage on the respondent’s mobile phone around two weeks later.
On the night of the offending, the respondent and the female victim were staying at a hotel, at the behest of the respondent. The respondent administered drugs to the female victim. During that period, he penetrated her with his penis vaginally seven times, anally once and orally twice. The different types of penetration were interspersed with one another and also interspersed with the respondent spitting on her and slapping her, reflected in one scheduled offence of aggravated common assault. Each of the three types of penetration were reflected in separate charges of sexual intercourse without consent, rolled up in respect of the seven vaginal penetrations and two oral penetrations. The sentence imposed
The sentencing reasons disclose a careful and thorough description and consideration of the following key aspects: (a) the facts and circumstances of the offending conduct; (b) the post-offence events, including the respondent’s engagement in the police investigation; (c) the subjective circumstances of the respondent, both in general and in relation to the offending conduct, including as to history and background and his mental health; (d) the pre-sentence report, which identified a “well above average” risk of reoffending; (e) the profound and long-term harm caused to each of the victims; (f) the sentencing considerations arising from the conduct, including a careful assessment of the respondent’s moral culpability, and the evidence which showed remorse to a limited degree; (g) the guilty pleas, which resulted in only a 5% discount for the offending against the female victim by reason of the lateness of the plea and strength of the prosecution case, and a 10% discount for the offending against the male victim by reason of the prosecution’s case being less strong; and (h) the importance of totality in this particular sentencing exercise.
The sentences arrived at by the sentencing judge totalled 18 years and 6 months before the guilty pleas were taken into account, and almost 17 years and 3 months after the very modest discounts for guilty pleas were taken into account (5% for the offences against the female victim; 10% for the offence against the male victim). The individual sentences imposed after the guilty plea discounts were: Count 1: Aggravated intimate observations or capturing visual data against the female victim: 1 year, 10 months and 14 days; Count 2: Aggravated sexual intercourse without consent (relating to vaginal intercourse with the female victim): 5 years, 2 months and 14 days; Count 3: Aggravated sexual intercourse without consent (relating to anal intercourse with the female victim): 3 years, 3 months and 14 days; Count 4: Aggravated sexual intercourse without consent (relating to oral intercourse with the female victim): 3 years, 3 months and 14 days; Count 5: Sexual intercourse without consent (relating to the male victim): 3 years and 7 months.
The principles applicable to assertions of manifest inadequacy or manifest excess
The High Court stated the basis on which a sentence might be overturned on the ground of manifest inadequacy or excess in House v the King [1936] HCA 40; 55 CLR 499 at 505 (Dixon, Evatt and McTiernan JJ) as follows: It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
However, their Honours noted that to interfere with a sentence on appeal (at 504 – 505): It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.
To this end, it was observed by this Court in R v Nicholas; R v Palmer [2019] ACTCA 36 (Murrell CJ, Mossop and Rangiah JJ) at [66] that an appellate court “must respect the wide discretion of the sentencing judge concerning an appropriate sentence”.
The process by which an appellate court might reach a finding of manifest inadequacy, and the nature of the reasoning which might support such a finding, was described in the joint judgment of Gleeson CJ and Hayne J in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] (in dissent, but not on this point): Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case. (Emphasis added.)
Having made these general observations, Gleeson CJ and Hayne J at [9] characterised the ground of appeal of manifest inadequacy in Dinsdale as a “ground which did not require, or even admit of, expansive elaboration of a process of reasoning which leads to its acceptance or rejection”. Similarly, the majority of the High Court observed in Hili v The Queen [2010] HCA 45; 242 CLR 520 that manifest inadequacy “is a conclusion that does not admit of lengthy exposition”: [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The appellant’s argument on manifest inadequacy
The appellant contended that the duration of the terms of imprisonment imposed by the sentencing judge were manifestly inadequate. There was no overt error relied upon to support the ground, reinforced by the appellant’s oral submission: As is common when manifest inadequacy or manifest excess is asserted, the nature of the error is not discernible in that, on the face of the record, the sentencing judge's remarks were unimpeachable but it is the result that we say is unreasonable or plainly unjust.
The appellant’s written submissions contended that while “at first blush” the total term of imprisonment is not insubstantial, the assertion of manifest inadequacy became clear when regard was had to the gravity of the offending, the maximum penalties and the subjective matters (which were described as not being compelling). The only aspects of the sentencing reasons criticised by the appellant was the numerical outcome reflected in the head sentence, each of the individual sentences imposed and the degree of concurrency in the sentence imposed.
The appellant appeared to proceed on the basis that this matter was in the category of manifest inadequacy appeal which required nothing further than stating the result as being so obviously too short as to require nothing more: again, see Tuifua at [12]. Consistent with this position the appellant accepted that the great bulk of the written submissions were occupied with describing the offending conduct and other features of the sentencing exercise, coupled with the ultimate assertion to start with, that those features should have produced higher sentences for the offences individually and collectively, and a lesser degree of concurrency. The appellant submitted: [O]ur submission is that […] when the nature of the offending and the persistent nature of the offending against two victims is interrogated, our submission is that the sentence is manifestly inadequate. I can’t do much more than point to the particular circumstance[s].
This was not a case in which such an approach was sufficient to demonstrate that the duration of the sentences imposed, or the structure by which they were imposed, produced a result that was manifestly inadequate. The sentences imposed (set out above at [14․]) above was, on any view, substantial, as was effectively conceded by the appellant (see [27․] above). The sentences arrived at totalled 18 years and 6 months before the guilty pleas were taken into account, and those imposed totalled almost 17 years and 3 months after the very modest discounts for guilty pleas. The sentencing judge carefully applied the totality principle in arriving at the overall sentence imposed of 9 years, 3 months and 11 days imprisonment, with a non-parole period of 6 years, with complete accumulation between the sentence imposed for the most serious offence against the female victim and that imposed for the offence against the male victim: Hojlund (No 2) [130]-[132].
With this being the case, it was necessary for the appellant to demonstrate to the Court that the duration of the individual sentences imposed, and/or the total overall sentence, did in fact meet the description of being manifestly inadequate. As noted above, in a case such as this in which no particular error is relied upon to support the claim of manifest inadequacy, the range of arguments which might be put to this end may be quite limited. The task will generally be easier if the conclusion was said to arise from the type of sentence imposed, as adverted to in the passages from Dinsdale reproduced above, which is concerned with disposition (that is, the mode of serving the sentence) rather than duration (the length of the sentence).
I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 9.12.2025 ANNEXURE A
DPP
Hojlund [2025] ACTCA 52
The appeal was dismissed. The Court held that the DPP had not established error or manifest inadequacy in the individual sentences, their structure, or the overall sentence.
Following the careful application of the totality principle, the sentencing judge imposed an overall head sentence of 9 years, 3 months and 11 days imprisonment, with a non-parole period of 6 years: Hojlund (No2) [130]-[132]. The structuring of these sentences is illustrated in the diagram contained in the appellant’s written submissions, extracted at Annexure A to these reasons. That diagram makes it clear that the sentence imposed for the offence against the male victim (count 5) was wholly consecutive with the sentence imposed for the most serious offence against the female victim (count 2). There is both concurrency and consecutiveness as between the other two most serious offences against female victim.
These remarks serve to demonstrate that, in concluding that a sentence imposed by a sentencing court is manifestly inadequate, the degree to which an appellate court will be able to expand upon the reasons for reaching that conclusion will vary from case to case. For example, it may be that where, as in this case, it is not alleged that any particular error of reasoning appears on the face of the sentencing reasons, the degree of elaboration available may be limited. In some such cases, the conclusion of manifest inadequacy (or excess) can be based on nothing more than the result that has been arrived at because it is, to paraphrase the reasons of Gleeson CJ and Hayne J at [6] in Dinsdale reproduced above, “the wrong type of sentence”, or because it is “manifestly too long or too short”.
In an appeal concerning only the sentence duration and no overt error in reasoning, the word “manifest” will often have real work to do. The Macquarie Dictionary describes the ordinary meaning of that word as “readily perceived by the eye or the understanding; evident; obvious; apparent; plain”. The requirement that the inadequacy be “manifest” reflects that the ground is only made out where the result is inappropriately lenient to such a degree that it supports an inference that there was a latent error of principle committed by the sentencing judge, even though no error can be identified on the face of the reasons given.
If a sentence is imposed that is insubstantial and only a small proportion of what was obviously appropriate in all the circumstances, it may readily meet the description of being “manifestly” inadequate. But in the absence of a clear feature such as that, more effort is generally going to be required to demonstrate that it should be inferred that the sentencing judge erred in some unidentifiable way. As a practical matter, that will often entail relying upon comparative sentences in order to demonstrate that the sentence imposed lies outside what was properly available, such that there must have been error: R v Tuifua [2023] ACTCA 6 at [12] (McCallum CJ, Mossop and Bromwich JJ).
Having regard to the above, in a case such as this in which: (a) no particular error is relied upon to support the claim of manifest inadequacy; (b) the assertion of error is based only on the duration and not the mode of sentence; (c) the duration of the sentence is substantial so as not to be obviously inadequate; and (d) any comparative cases referred to by the prosecutor are insufficient to show an impermissible deviation from established sentencing patterns (or no such cases are relied upon), the range of arguments which might be put to demonstrate the presence of implied error may be limited or even wholly absent.
That set of circumstances may be quite a clear sign that such an appeal cannot be described as having any reasonable prospect of success, a threshold that the appellant’s published policy mandates for commencing a prosecution and ought, for consistency, also apply to appeals: The Prosecution Policy of the Australian Capital Territory, 1 April 2021 at [2.4] (the version currently published on the DPP’s website).
As outlined at [23․] above, a common and conventional way in which duration appeals of this kind is conducted is by reference to sentences that have been imposed in cases which have key features in common with the case at hand. It is well established that comparative sentences provide no more than yardsticks for the assessment of an appropriate sentence: Hili at [54].
The appellant’s written submissions referred to the three comparative cases which had been provided to the sentencing judge by the prosecution below. The sentences imposed in those cases ranged from 3 years and 5 months (non-parole period of 1 year and 10 months) to 9 years and 10 months (non-parole period of 5 years and 10 months). The appellant submitted that the respondent’s offending was more serious than in those comparative cases. However, beyond that assertion it is unclear how that submission is relied upon to show that the sentence imposed in this case was manifestly inadequate. The appellant did not explicitly submit that these cases constituted any established pattern of sentencing from which the sentencing judge departed, and no such pattern is readily apparent.
Further, the appellant, quite properly, did not seem to be suggesting that her Honour inappropriately limited the exercise of her discretion by reference to the sentences imposed in those comparative cases. That submission would have been inconsistent with the stance that there was no particular error committed by the sentencing judge. More importantly, it would overlook the considered manner in which her Honour approached these comparative cases, proffered by the prosecutor, in the sentencing reasons. Her Honour indicated that she did not find the New South Wales cases as being of assistance and had carefully considered the sentences imposed in the ACT as required by s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT). Her Honour also expressly noted the care that had to be taken from those cases, involving differing offences with different maximum penalties, and referred to the leading High Court authorities on the limited use to which comparative sentences can be put, namely Hili at [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), R v Pham [2015] HCA 39; 256 CLR 550 at [29] (French CJ, Keane and Nettle JJ) and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53] (Kiefel CJ, Bell and Keane JJ): see also Hojlund (No2) [118]-[120].
Another possible yardstick in a case of this kind may be the maximum penalty available. The appellant did refer to the maximum penalties for the offences, and asserted that they served to demonstrate the inadequacy of the sentence given the total maximum penalty in relation to the offending against the female victim was 48 years’ imprisonment, being the sum of the maximum penalties for the four offences against her. If the offending against the male victim were added, this methodology would have produced a figure of 60 years.
The aggregation of the maximum sentences for each offence in this way is an approach unfamiliar to Australian law, and fails to account for the principle of totality and its application by the sentencing judge. A significant limitation of this approach of aggregating maximum available penalties can be readily demonstrated by noting that the offending conduct which was the subject of three charges of aggravated sexual intercourse without consent against the female victim in this case could also have been brought as one rolled up charge encompassing all ten acts of penetration, or ten individual charges brought in relation to each individual act. This means that the figure relied upon by the appellant as a yardstick for the appropriate sentence in relation to the female victim could have ranged from: (a) 18 years imprisonment, including the maximum sentence for a single rolled up count of aggravated sexual intercourse of 15 years’ imprisonment; to (b) 153 years imprisonment, including 10 times the maximum penalty of 15 years’ imprisonment for each of 10 counts of aggravated sexual intercourse, each with a maximum penalty of 15 years’ imprisonment, despite there being no change in the seriousness of the overall conduct.
Plainly enough the prosecution decided, entirely properly for the purposes of sentencing, to charge the ten acts of penetration as three offences reflecting material differences in the nature of the acts of penetration in order to reflect the breadth of the criminality involved and to enable the sentencing judge to have enough scope to impose individual sentences and a sentence overall that addresses that criminality. Of course, if the charges had been defended, the respondent would have faced all ten counts at trial.
The appellant did not make any submission about how the aggregate of the available maximum penalties demonstrated manifest inadequacy in any of the individual sentences imposed, or the overall sentence imposed. For example, there was no comparison made between this figure and the aggregate of the individual sentences that were imposed, being 18 years and 6 months before the guilty pleas were taken into account, and almost 17 years and 3 months after the very modest discounts for guilty pleas were taken into account, before the application of the totality principle. In any event, any suggestion that the aggregate of the maximum available penalties demonstrated that the sentences imposed were unreasonably short could not be maintained once proper regard is had to the careful and unchallenged reasons that the sentencing judge gave, including as to objective seriousness and subjective circumstances.
In addition to asserting that the individual sentences were generally unreasonable and plainly unjust, the appellant submitted that the degree of concurrency between the sentences imposed was excessive, such that the total effective sentence of 9 years, 3 months and 11 days was manifestly inadequate. We do not agree.
The chart reproduced from the appellant’s written submissions at Annexure A to these reasons, far from indicating error, reinforces the soundness of the exercise conducted by the sentencing judge and the reasonableness of the conclusions her Honour reached in structuring the sentences imposed. As noted above, the chart makes it clear that the sentence imposed for the offence against the male victim was wholly consecutive to the sentence imposed for the most serious offence against the female victim. The chart also discloses that there was a reasonable degree of both concurrency and consecutiveness as between the other two most serious offences against female victim, keeping steadily in mind that all of the offences against the female victim were part of an appalling single course of conduct in the space of about 80 minutes.
The appellant made some critical observations about the relationship between the different individual sentences. For example, it was submitted that the complete concurrency of count 1 (aggravated intimate observations or capturing visual data) with other offences committed against the female victim failed to recognise the additional harm caused by that aspect of the offending conduct. However, those submissions fail to acknowledge that this approach to concurrency, including imposing wholly concurrent sentences, is specifically authorised by the High Court as part of the application of the totality principle and in preference to imposing what might otherwise be inadequate sentences for individual offences: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 62- 63 (Wilson, Deane, Dawson, Toohey and Gaudron JJ). The appellant indicated orally that the sentencing judge’s application of Mill was not challenged per se.
No separate complaint was made about the non-parole period, but for completeness, a substantial period of supervision upon release was expressly and appropriately supported by the lawyer appearing for the appellant at the sentence hearing. That is plainly in the public interest to help in the process of rehabilitation and to reduce the risk to the community of reoffending. And of course, if the respondent is unable to satisfy the parole authorities that he should be released after 6 years, he will remain in custody until such time as that state of satisfaction is reached. Conclusion
Far from demonstrating error by way of manifest inadequacy, the appellant has not established that the sentences imposed, either individually or as a whole, were inadequate at all in all the circumstances.
On any view, the offending was extremely serious, but also on any view, having regard to the matters so effectively canvassed by the sentencing judge, the sentence imposed was well within her Honour’s sentencing discretion.
As no error had been established, the appeal was dismissed at the appeal hearing.