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[2025] QCA 259
respondent. The application for leave to appeal was refused ([52]).
The Court of Appeal refused the applicant's request for leave to appeal his sentence. It held that the six-year period before parole eligibility was not shown to be manifestly excessive. The sentencing judge had taken the guilty plea into account when setting the nine-year head sentence, and comparable cases did not establish a fixed parole benchmark. The Court also rejected the procedural fairness complaint: on the circumstances and the prosecutor's submissions, the six-year period was not shown to be an unexpected sentencing outcome that required advance warning.
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2,379 words · generated 07/10/2026
In R v BFA [2025] QCA 259, the Queensland Court of Appeal refused an application for leave to appeal against sentence. Bleby AJA gave the principal reasons. Bond JA agreed with those reasons and the proposed order. Brown JA also agreed, adding brief observations about procedural fairness and parole eligibility.
1 cited instrument linked from this judgment.
BFA pleaded guilty to one count of maintaining an unlawful sexual relationship with a child, contrary to s 229B(1) of the Criminal Code (Qld), and two counts of rape, contrary to ss 349(1) and (2)(a) of that Code ([6]). The complainant was BFA’s stepdaughter. The offending began when she was 11 and continued during her adolescence. The rape counts concerned offending when she was 17 ([8]-[19]).
The agreed facts described a sustained pattern of sexual abuse, manipulation and exploitation by a stepfather. The complainant’s account included repeated sexual contact, pressure to perform sexual acts in exchange for permission to go out, and conduct that made her fear being punished if she resisted ([11]-[13]). The two rape incidents involved penetration despite the complainant expressing that she did not want it and was in pain ([16]-[19]). The Court also recorded that the offending had caused profound and continuing harm, as set out in the complainant’s victim impact statement ([24]).
The District Court sentenced BFA to nine years’ imprisonment for the maintaining offence and six years for each rape. The sentences were concurrent, with parole eligibility after six years ([6]). BFA accepted that the nine-year head sentence was within the available range, but argued that the non-parole period was manifestly excessive. He sought a period equivalent to half of the head sentence, relying on his guilty plea, cooperation and remorse ([21], [27]).
On the day of the appeal hearing, counsel sought leave to add a second ground: that BFA had been denied procedural fairness because the sentencing judge did not indicate in advance that a six-year non-parole period was under consideration ([7]). The Court refused an adjournment, invited supplementary written argument and considered the additional ground. It ultimately refused leave to appeal on the application as a whole ([52]).
The Court began with the established threshold for appellate intervention. A sentence is manifestly excessive if it is unreasonable or plainly unjust; it is not enough that an appeal court might have reached a different result ([26]). This constrained the Court’s role. It was not conducting a fresh sentencing exercise but deciding whether the sentence crossed the threshold for appellate correction.
The applicant’s comparison with other cases did not demonstrate that threshold was crossed. Bleby AJA reviewed several Queensland decisions involving maintaining offences, rape or related child sexual offending ([28]). The factual circumstances and sentencing outcomes varied. In some cases, parole eligibility was around or below half of the head sentence; in others the relevant judgments did not specify a parole period or involved different combinations of offending and aggravating features. The Court said that granular comparison is unlikely to help where cases differ in their aggravating and mitigating features ([28]). More fundamentally, prior cases in which appeals were dismissed did not create a general approval of a particular sentencing standard or establish what would be excessive ([32]).
The Court considered the sentence as a whole and the way the guilty plea had been recognised. The sentencing judge said that, but for the plea, a 12-year head sentence would have been imposed. He considered a 10-year sentence open even after the plea. By imposing nine years, the judge had reduced the head sentence and had taken account of the plea and other mitigating matters, including the effect of the head sentence on the statutory parole position ([29]). The prosecution’s submissions had also discussed the possibility of a 10-year sentence and the available discretion concerning parole eligibility ([30]-[31]).
The evidence supporting mitigation was limited. The plea was entered relatively late. Although the defence described it as indicative of remorse, the sentencing judge found little else supporting that claim. The pretext-call admissions were, if anything, counter-indicative ([22]). The psychological report described significant personal difficulties and a need for counselling, but there was no evidence that BFA had engaged in counselling by sentence ([23]). Bleby AJA therefore rejected the contention that the six-year non-parole period erased the benefit of the positive features. In his view, it substantially accommodated them ([33]).
The seriousness of the offending and its consequences formed part of the assessment. The Court characterised it as extremely serious, involving a gross breach of trust and devastating consequences ([24], [34]). The result was that the non-parole period remained within the sentencing judge’s discretion and was not manifestly excessive ([34]-[35]).
The procedural fairness ground turned on whether the six-year period was sufficiently unusual that the sentencing judge needed to alert the parties and invite further submissions. The Court discussed R v Kitson, where a parole release date well beyond the midpoint of a short sentence was found to be very unusual in the context of that case and had not been sought or contemplated in submissions ([38]-[39]). It also discussed R v JAB, which recognises a principle of adequate notice and opportunity to be heard, while making clear that a judge need not list every sentencing alternative ([40]-[41]).
The Court considered R v FVN particularly relevant. There, the Court had rejected a procedural fairness complaint about parole eligibility, noting that the sentencing judge’s decision was not unexpected or unusual in the circumstances and that the mitigating features did not call for additional allowance ([42]-[45]). In BFA, Bleby AJA said a claim of unusualness must be considered against the case’s particular circumstances, especially after a manifest excess complaint has failed ([46]).
BFA’s reliance on comparable cases did not establish an individual claim to parole eligibility after half the head sentence. The plea was late, remorse was not established beyond the plea, and mitigation was limited ([47]-[48]). The prosecution had submitted that a 10-year head sentence was open, which would involve an eight-year non-parole period. It had also acknowledged the possibility of a lower non-parole period if the head sentence fell below 10 years, while emphasising that the outcome depended on the judge’s assessment of the criminality ([30], [50]). The Court concluded that the six-year result was within the contemplation of those submissions, so the procedural fairness claim failed ([51]).
The judgment did not purport to create a new sentencing tariff or a general rule fixing parole eligibility for offences of this kind. Its starting point was the existing manifest excess test, drawing on House v The King and the sentencing consistency principle described in Markarian v The Queen ([26]). The Court reiterated that appellate restraint operates alongside a need for a consistent approach, but consistency does not mean identical outcomes in cases with different features.
Before this decision, the authorities discussed in the judgment already established that comparable sentences may be useful as broad points of reference, but are not a numerical yardstick. R v PAM was cited for the caution against granular comparison, while the other cases showed varied outcomes on different facts ([28]). BFA reinforced that approach: a series of appeal decisions refusing to interfere with sentences does not amount to approval of a standard non-parole percentage ([32]).
On procedural fairness, the judgment applied rather than displaced the existing principles in Kitson, JAB and FVN. The general position remains that a sentencing judge need not signal every possible outcome. Notice may be required where a proposed sentence or additional penalty may be unusual, but whether an outcome is unusual depends on the circumstances, including what was sought or contemplated in submissions ([38]-[46]). The decision illustrates that a numerical difference from outcomes in other cases, without engagement with the particular offender’s circumstances and the sentencing submissions, may not establish unusualness.
Brown JA’s additional remarks highlighted the discretionary character of parole eligibility. Citing R v Free, he observed that the discretion is not governed by a mathematical formula or convention ([4]). That observation is consistent with the Court’s refusal to treat the 50 per cent mark as a presumptive entitlement. It does not mean the discretion is unlimited in an abstract sense; the judgment’s point is that parole eligibility must be assessed in the relevant statutory and factual setting.
The judgment also observed that the statutory provisions concerning sentencing for sexual offences against children were intended to ensure that sentences reflected significant physical and psychological consequences ([5]). The principal reasons, however, did not set out a detailed statutory analysis of those provisions. The decision should therefore not be read as establishing a separate statutory test beyond the propositions it expressly states.
At [26], Bleby AJA states: “Manifest excess is a conclusion that a sentence is unreasonable or plainly unjust.” In plain English, an appeal court does not change a sentence simply because it would have chosen a different sentence. The challenge must show that the sentence is outside the range that can reasonably be imposed.
At [28], the judgment cautions that “a granular comparison of authorities is unlikely to be helpful” because cases have different aggravating and mitigating features. This means case comparisons should identify broad context, not substitute for examining the actual offence, offender and sentencing reasons.
At [32], the Court says the cases discussed “do not constitute a general approval of some standard, let alone a statement of what would be excessive.” The practical significance is that prior outcomes cannot simply be converted into a rule that parole eligibility must fall at a particular fraction of a sentence.
At [33], Bleby AJA says the six-year period “designedly represented a substantial accommodation” of the mitigating features. The judge’s sentence was treated as recognising the plea and other mitigation, even though the applicant argued that the non-parole period removed that benefit.
At [48], the Court reasons that the plea had already produced a substantial reduction in the head sentence and that a further reduction of the non-parole period would have been an “unwarranted double benefit”. In plain English, the same mitigating feature should not automatically produce repeated reductions without considering the overall sentence and how the sentencing judge accounted for it.
At [51], Bleby AJA says the six-year period “was within the contemplation of those submissions.” This was central to the procedural fairness conclusion: the prosecution had raised a 10-year head sentence and the discretionary consequences for parole, so the final period was not treated as an unanticipated outcome requiring further warning.
Brown JA’s observation at [4], drawn from R v Free, is that parole eligibility involves no “mathematical approach” based on convention. This rejects a mechanical assumption that parole eligibility should always be fixed at a particular percentage.
The decision is most directly relevant to sentence appeals where an applicant argues that a non-parole period is manifestly excessive by comparing it with outcomes in other Queensland cases involving similar offences. It indicates that such comparisons will be considered in context and will not establish a tariff on their own ([28], [32]).
It is also relevant where a procedural fairness complaint alleges that the sentencing judge failed to give advance notice of a parole eligibility period. The key questions, as treated in this judgment, include whether the proposed outcome was unusual in the circumstances, whether it was raised or contemplated in the parties’ submissions, and what the individual aggravating and mitigating features were ([46]-[51]).
The facts that mattered here included a late guilty plea, little evidence of remorse, no demonstrated engagement in counselling, serious offending against a child within a relationship of trust, and substantial harm to the complainant ([22]-[25], [47]-[48]). The judgment does not state that any one of these features will always determine parole eligibility. It explains their combined relevance to the particular appeal.
The decision is also pertinent where a plea is said to warrant both a shorter head sentence and a lower parole eligibility period. The Court examined how the sentencing judge had already reflected the plea in the head sentence and considered whether another reduction would give an unwarranted additional benefit ([29], [48]).
The supplied judgment contains no later decisions discussing or applying R v BFA. As a decision delivered on 19 December 2025, it cannot, on the material provided here, establish how subsequent courts have treated it. The judgment itself draws on earlier authorities, including R v Kitson, R v JAB, R v FVN and R v Free, and explains how those authorities informed its reasoning ([4], [38]-[45]).
For research purposes, the decision’s treatment by later courts would need to be checked against later judgments. No conclusion about subsequent adoption, limitation or departure can be drawn from the text supplied.
The judgment does not specify a general threshold for when a parole eligibility period becomes “unusual” for procedural fairness purposes. It applies the concept contextually and emphasises the facts of the case, the proposed sentencing range and what the parties said ([46]-[51]). The decision therefore leaves the assessment highly dependent on the particular sentencing record.
Nor does the judgment identify a preferred percentage or range for parole eligibility in cases involving maintaining an unlawful sexual relationship and rape. It expressly rejects treating the cited decisions as a tariff ([32], [34]). The cases discussed differ in their offending, pleas, personal circumstances and parole orders, making it difficult to infer a numerical rule.
The Court also did not decide that a late plea can never support a particular parole outcome, or that evidence of remorse or rehabilitation is essential in every case. It assessed the evidence available about this applicant: the plea was relatively late, evidence of remorse was limited, and there was no evidence of counselling ([22]-[23]). The conclusions should be confined to that record.
Finally, the judgment records that the prosecutor’s submissions contemplated the relevant sentencing discretion, but it does not establish a universal rule that any mention of parole eligibility in submissions will satisfy procedural fairness. The significance of submissions will depend on their content and the sentencing outcome ultimately under consideration.
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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: R v BFA [2025] QCA 259
PARTIES: R / v / BFA / (applicant)
FILE NO/S: CA No 116 of 2025 / DC No 403 of 2021
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Ipswich – Date of Sentence: 30 April 2025 (Power KC DCJ)
DELIVERED ON: 19 December 2025
DELIVERED AT: Brisbane
HEARING DATE: 18 September 2025
JUDGES: Bond and Brown JJA and Bleby AJA
ORDER: The application for leave to appeal 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 one count of maintaining an unlawful sexual relationship with a child (Count 1) and two counts of rape (Counts 22 and 23) – where the applicant was sentenced to nine years’ imprisonment on Count 1 and six years’ imprisonment on each of Counts 22 and 23 to be served concurrently – where the sentencing judge ordered the applicant would be eligible for parole after serving six years’ imprisonment – where the sentencing judge expressed a head sentence of 12 years would have been imposed but for the applicant’s plea of guilty – where the applicant argued on appeal that a non-parole period of six years was manifestly excessive having regard to the applicant’s guilty plea, cooperation and remorse – whether the non-parole period imposed was manifestly excessive / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child (Count 1) and two counts of rape (Counts 22 and 23) – where the applicant was sentenced to nine years’ imprisonment on Count 1 and six years’ imprisonment on each of Counts 22 and 23 to be served concurrently – where the applicant’s pleaded guilty at a late stage and there was little indication of remorse – where the primary judge did not indicate to the parties, other than when imposing sentence, the non-parole period that was being contemplated – where the sentencing judge ordered the applicant would be eligible for parole after serving six years’ imprisonment – where the applicant argued on appeal that the applicant was denied procedural fairness by not being permitted to address the sentencing judge on the non-parole period of six years’ imprisonment – whether the applicant was denied procedural fairness / Corrective Services Act 2006 (Qld), s 184 / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited / R v FVN [2021] QCA 88, considered / R v JAB (2020) 4 QR 588; [2020] QCA 124, cited / R v Kitson [2008] QCA 86, considered
COUNSEL: W J Tolton for the applicant / M A Green for the respondent
SOLICITORS: Jeff Horsey Solicitors for the applicant / Director of Public Prosecutions (Queensland) for the respondent
BOND JA: I agree with the reasons for judgment of Bleby AJA and with the order proposed by his Honour. I also agree with the additional remarks made by Brown JA.
BROWN JA: I agree with the reasons of Bleby AJA and with the order proposed by his Honour. Having had the advantage of reading his Honour’s reasons I wish to add only some short additional remarks in relation to the complaint that the sentencing judge denied the applicant procedural fairness by not putting counsel for the applicant on notice that he was considering the imposition of a parole eligibility date of six years.
As Justice Bleby has observed, there was little to be said by way of mitigation in the applicant’s favour at the time of sentence other than the plea of guilty which was a relatively late plea. He did not express any remorse for his conduct. In addition there was no evidence indicating that he has taken steps towards rehabilitation and had prospects of rehabilitation. While the psychologist’s report that was tendered on behalf of the applicant referred to his being diagnosed with post-traumatic stress disorder in March 2025, it also revealed that he had engaged in paedophiliac behaviour having apparent indicators of complex psychological issues. The report identified the need for the applicant to engage in counselling for his psychological issues but there was no evidence he had engaged in any counselling. Although the applicant told the psychologist he was no longer attracted to underage girls and would never engage in offending again, he could offer no reason why he engaged in the offending behaviour which he did. He did not he express any remorse for his actions to the psychologist.
The lack of evidence as to rehabilitation further supports there was no “unusualness” in the sentence which required the applicant to be put on notice of a potential parole eligibility of six years. As Justice Bleby stated this was particularly so in light of the prosecutor’s submission that it was open to impose a head sentence of 10 years, which would have resulted in the applicant having a non-parole period of eight years and if his Honour went below 10 years it was within his discretion to moderate the parole eligibility date. It was obvious that the question of the extent to which the parole eligibility date should be modified was in issue before the sentencing judge. As was noted by the court in R v Free; Ex parte Attorney-General of (Queensland)1 “the discretion to fix a parole eligibility date is unfettered; and there can be no mathematical approach to fixing that date, including on the basis of convention”.2
This is a case where the offending was against a child, who had given a victim impact statement indicating that the offending has had a long lasting effect on all aspects of her life. The considerations with respect to a sentence for an offence of a sexual nature committed in relation to a child contained in s 9(4) and 9(6) of the (Qld) were introduced to make clear that the sentences imposed on child sex offenders reflect the significant physical and psychological consequences of these offences. As stated by Justice Bleby, the discretion to determine parole eligibility was at large and plainly could result in a parole eligibility being moderated above the halfway mark.
Background
On 21 September 2021, the Crown charged the applicant with 26 sexual offences against a single complainant, the applicant’s stepdaughter. The trial was delayed by issues relating to the Crown’s production of evidence. On 25 November 2024, the Crown accepted pleas of guilty to Counts 1, 22 and 23 in satisfaction of the indictment.
Count 1 alleged that on a date or dates unknown between 30 April 2003 and 27 April 2008, the applicant maintained an unlawful sexual relationship with the complainant, a child under 16 years.
Count 22 alleged that on 27 December 2009, the applicant raped the complainant. Count 23 alleged that on a date unknown between 1 January 2010 and 1 February 2010, the applicant raped the complainant.
The offending was the subject of an agreed Statement of Facts. It took place while the complainant was aged between 11 and 17. The applicant was the complainant’s stepfather from when the complainant was two. When the complainant was 11, the applicant would come to her bedroom and kiss her on the mouth, sometimes with an open mouth. He would do this when the complainant’s mother went for a shower. He progressed to touching the complainant’s buttocks and breasts and eventually started touching her vagina with his finger and inserting a finger into her vagina. He told her he wanted to start touching her with his penis.
When the complainant was in Year 8, the applicant commenced rubbing his penis on her vagina approximately twice a week. The complainant told police that the applicant ‘would do stuff to me so frequently, it felt like every night when Mum went for a shower’. When she wanted to go to the movies or to a friend’s place, the applicant would tell her that she needed to do him a ‘favour’. This would be sucking the applicant’s penis or allowing him to touch or lick her vagina. The complainant became accustomed to doing ‘favours’ if she wanted to do something.
When the complainant’s sibling was two or three years old, the complainant would sometimes have him sleep in her bed to prevent the applicant from coming into her room. In time, the applicant would make the complainant go into his bedroom. If the complainant did not go when her mother was in the shower, the applicant would get angry, and the complainant would be in trouble. The applicant would touch the complainant’s vagina with his penis most nights. Sometimes the applicant asked the complainant to change into her school uniform before coming into his bedroom.
Counts 22 and 23 occurred when the complainant was 17. It was agreed that while the applicant may have held the belief that the complainant was consenting to sex, that belief was not reasonable in the circumstances and history of their relationship.
On 27 December 2009, the applicant organised for the complainant and himself to be the only people home. He took the complainant to Fasta Pasta and told her he wanted to make the night special. He then took her back home and lit candles in her bedroom. He put on music, saying that the song was ‘their’ song and he wanted it playing the first time they had sex.
The complaint of manifest excess
The applicant accepted that a head sentence of nine years’ imprisonment was within the range available to the sentencing judge. However, he submitted that having regard to his guilty plea, his cooperation and remorse, a non-parole period of six years was manifestly excessive. Specifically, it removed the benefit of those positive features of his case. He submitted that an appropriate non-parole period would be 50 per cent, or four and a half years.
The judge found the applicant otherwise to be of good character. The applicant had the support of a large number of people in the community and had worked productively. He had minor, unrelated criminal antecedents. He pleaded guilty, albeit at a relatively late stage. The defence at sentencing submitted that this was indicative of remorse. However, that indication was isolated; there was nothing further to indicate remorse. The applicant’s admissions during the pretext call were, if anything, counter-indicative.
The applicant had a difficult and traumatic childhood. A psychological assessment concluded that he was suffering from a post-traumatic stress disorder as a result of abuse by his father and stepfathers in his childhood. It further concluded that he had a mixed personality disorder with autistic, paranoid and angry traits. The combination of these disorders caused him to have a ‘very fragile personality structure’. The judge accepted that this may have led to or been connected with his sexual exploitation of his stepdaughter. At the time of sentencing, the applicant had not engaged in any counselling.
The complainant has been deeply traumatised by the abuse. As the judge observed, her victim impact statement is a traumatic document to read. She lives with constant senses of fear, anxiety and shame. Her wellbeing is fragile. She experiences intense anger and anxiety. The psychological stress she has endured continues to manifest in distressing physical symptoms. She has extreme difficulty interacting socially and the effect on her capacity to work has been devastating.
The offending constituted a gross breach of trust and was highly manipulative.
Manifest excess is a conclusion that a sentence is unreasonable or plainly unjust.4 It is not sufficient for an appeal court to conclude that it would have come to a different sentence. Judges at first instance should have as much flexibility as is consonant with a consistent approach by the courts to sentencing for offending of a like nature in accordance with the governing statutory regime.5
The effect of the applicant’s submission on appeal was that a non-parole period of six years, or two-thirds of the head sentence, was not consonant with the consistent approach of the courts in this jurisdiction to sentencing for like matters and having regard to the statutory framework for sentencing. He submitted that a consistent approach would recommend that he be eligible for parole after serving half of the head sentence, in accordance with s 184 of the .
In R v SCQ,7 the defendant was found guilty at trial of one count of maintaining an unlawful sexual relationship with a minor (over a period of five years) and one count of rape. He pleaded guilty to 14 other charges of indecent treatment of children. Both counts were domestic violence offences. He was sentenced to a head sentence of nine years’ imprisonment, which this Court held not to be manifestly excessive. The non-parole period does not feature in the judgment at all.
In R v PAM,8 the appellant pleaded guilty to one count of maintaining an unlawful sexual relationship and one count of rape. The appellant was the complainant’s stepfather and committed serious sexual abuses against her over a three-year period, when she was aged between five and eight. He had a poor criminal history. The Court held a head sentence of eight years to be not manifestly excessive and that it was appropriate to set a parole eligibility date at one-third of the head sentence. This ‘generously recognised the few mitigating features’,9 being the guilty plea, the appellant’s dysfunctional background and own abuse as a child.
In R v BAO,10 the appellant was sentenced on one count of maintaining an unlawful sexual relationship, over a three-year period, to imprisonment of nine years with parole eligibility at the halfway point. The complainant was aged 9-10 at the commencement of the offending. The offending involved frequent acts of digital penetration and oral sex, as well as other incidents of oral, vaginal and anal penetration. The applicant was a close family friend, and the offending involved a breach of trust.
In R v SBJ,11 the applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with his daughter who was under 16 years, five counts of indecent treatment of his daughter during the maintaining period, one count of attempted incest and two counts of incest. He was sentenced on the maintaining charge to a head sentence of nine years’ imprisonment with parole eligibility after four years. This Court dismissed an appeal against sentence.
In R v BCW,12 the appellant pleaded guilty to 14 offences involving three children. The complainants were his two stepsons and his biological son. The most serious offence was a maintaining offence in respect of one of his stepsons. The appellant was sentenced for this to nine years’ imprisonment with parole eligibility after three years. The Court refused the application for permission to appeal against sentence.
In R v HCF,13 the appellant was sentenced, after a trial, to nine years’ imprisonment for one count of maintaining a sexual relationship with a child. It appears that no date was set as to parole eligibility. The appellant was the uncle of the complainant. The abuse started when the complainant was five or six and continued for a decade. The relationship was characterised by physical violence and emotional blackmail. This Court refused permission to appeal against sentence.
In R v KBA,14 the applicant pleaded guilty to one count of indecent treatment of a child under 16 under care, one count of maintaining an unlawful sexual relationship with a child, eight counts of rape and two counts of sexual assault. Each offence was a domestic violence offence. He was sentenced to an effective head sentence of eight years’ imprisonment in respect of the last count of rape, with lesser sentences imposed on the balance, all to be served concurrently. No order was made for a parole release date, with the effect that the appellant became eligible for release on parole after four years. This Court refused permission to appeal on a ground of manifest excess.
In R v BDQ,15 the appellant was convicted, at trial, of one count of maintaining a sexual relationship with a child, two counts of rape and one count of indecent treatment of a child under 16 who is a lineal descendant. All four offences were domestic violence offences. The offending involved regular acts of digital and penile penetration over about two years against the appellant’s daughter. The appellant was the sole carer of his daughter. There was no evidence of physical violence or emotional blackmail. There was no evidence of remorse. The appellant was sentenced to 12 years’ imprisonment and was therefore required to serve 80 per cent of the sentence before becoming eligible for parole. This Court refused permission to appeal against sentence.
The sentencing judge expressed the view that even after a plea of guilty, a head sentence of 10 years was ‘entirely open’. But for the plea of guilty, he would have imposed a head sentence of 12 years, which would have enlivened an automatic non-parole period of 80 per cent. However, setting the head sentence at nine years avoided that enlivening. It effectively acknowledged the plea and the other matters in mitigation that the judge identified. Indeed, in reducing the head sentence to nine years, on account of the guilty plea in particular, the judge took express account of the consequent effect on the non-parole period.
At the sentencing hearing, the prosecutor submitted:
Ultimately, … it would be within this court’s discretion to impose a sentence in the order of 10 years. That would attract an automatic declaration of the serious violent offence and [requirement] of a percent of that head sentence in custody. If the court arrived at such a head sentence, depending on the head sentence that the court arrives at, your Honour could take into account the plea of guilty as was done in a number of those cases, by moderating the head sentence.
And that could, depending on where your Honour arrived at as a head sentence, that if it reduced it below on a 10 years your Honour could set a parole eligibility date, or not set a parole eligibility date, and in accordance with the Corrective Services Act he’d be eligible for parole at the 50 per cent mark. If your Honour arrived at a sentence that was under 10 years as a head sentence then your Honour might reflect the plea of guilty by setting an eligibility perhaps somewhere below the 50 per cent mark. But ultimately it does depend where your Honour assesses the criminality of the offending.
The last sentence of that submission manifestly applied to all aspects of the sentence.
A bare comparison with other cases is necessarily subject to the matters relevant to the discretion in the particular case. In any event, the authorities canvassed above are instances of this Court refusing to interfere with sentences on the grounds of manifest excess. They do not constitute a general approval of some standard, let alone a statement of what would be excessive.
There was nothing beyond the plea to indicate remorse for what was, as the sentencing judge observed, particularly serious offending. Indeed, there was little able to be said by way of mitigation. I do not accept that the non-parole period of six years removed the benefit of the positive features of the case, such as they were. It designedly represented a substantial accommodation of those features.
In all the circumstances of this offending, the submission that the non-parole period of six years was manifestly excessive is unsustainable. The judge crafted a head sentence and non-parole period for extremely serious offending, constituting a gross breach of trust with devastating consequences, that gave full credit for the late plea of guilty. The precedents to which the applicant referred do not express a tariff. The non-parole period was within the discretion of the sentencing judge.
I would refuse the application for permission to appeal on this ground.
The complaint of denial of procedural fairness
At sentencing, both the prosecution and defence drew to the Court’s attention various sentences imposed for broadly comparable offending. These included those considered by the authorities listed earlier. The non-parole periods imposed (by order or statute) in the example cases given have tended to cluster around the 50 per cent mark. In some cases they are lower.
The judge did not indicate, other than when imposing sentence, that he was contemplating a non-parole period of six years.
The applicant submitted on appeal that having regard to the various authorities referred to, the six-year non-parole period was unusual, in the manner discussed in R v Kitson.16 In that case, which concerned sentencing for various drug-possession offences, the applicant was sentenced to 12 months’ imprisonment, with an order that he be released on parole on a date that represented a non-parole period of about three-quarters of the head sentence.17 Because the head sentence was less than three years, the Court was required to fix a date for the applicant to be released on parole.
Fraser JA, with whom Fryberg and Lyons JJ agreed, considered that the applicant had a ‘claim upon the discretion for an order that he be released after serving less than half of the head sentence in view of his plea of guilty and personal circumstances’.18 He considered that in these circumstances, a parole release date significantly beyond the midpoint of the head sentence was ‘very unusual’. That being the case, he considered that the obligation to give reasons required explaining the process of reasoning behind it. In addition, he held:19
Because that aspect of the sentence was unusual and was not sought or contemplated in the submissions of either party, in my respectful opinion it should not have been imposed without the learned judge adverting to it and giving the parties an opportunity to be heard.
… has been adopted by this Court to set aside sentences imposed without first inviting submissions as to matters such as licence disqualification,22 a later than legislatively provided for parole release date,23 the declaration of a serious violent offence,24 or the recording of a conviction where reasons were not given and submissions were not invited before the recording of that conviction.25
That principle does not oblige a sentencing Judge to set out each and every alternative available in sentencing a defendant. As Atkinson J observed in R v Robertson:27
“Counsel who appear before judges on sentences are expected to know the provisions of Queensland’s sentencing law and to make relevant submissions.
Unless the judge is considering imposing a sentence which may be considered unusual or an additional penalty which is unusual, there is no obligation upon a sentencing judge to advise counsel of the sentence that may be imposed and to seek specific submissions on that.” (footnotes omitted).
In R v FVN,28 the applicant was sentenced to 13 years’ imprisonment for a series of sexual offences. The Court made no order for parole eligibility, with the effect that the applicant would become eligible to apply for parole after serving half of his head sentence. He applied for permission to appeal against sentence. One complaint was that the sentencing judge should have adverted to the possibility that no earlier parole eligibility date would be fixed and that the failure to do so denied him procedural fairness.29
The Court rejected that contention. In doing so, it distinguished R v Kitson in the following terms:30
The applicant here was in a very different position to Mr Kitson. The learned sentencing judge could not fix a parole release date for the applicant, as the head sentence was more than three years. His Honour had a discretion to fix a parole eligibility date, but was not required to do so.31 And, of course, his Honour did not postpone parole eligibility to a date later than the midpoint of the head sentence.
The Court also distinguished the applicant’s position from cases where the mitigating factors were different and recommended different outcomes. In particular, the plea was not early and did not evidence remorse. The Court held that it did not call for any further allowance by way of an early parole eligibility date.32
The Court observed that absent any statutory requirement as to how a penalty should be fashioned, sentencing judges have always regarded all elements of a sentence to be flexible. The obligation was to arrive at a just sentence in all the circumstances.33 In any event, it considered that in the instant case, the possibility of not fixing an early parole eligibility date could not have been regarded as unexpected or unusual.34 There was no denial of procedural fairness.35
I would approach any complaint of a want of procedural fairness premised on the ‘unusualness’ of a sentence, as is alleged here, with a degree of circumspection. Once a complaint of manifest excess is rejected, and the conclusion drawn that a non-parole period was within the discretion of the sentencing judge, any complaint of ‘unusualness’ must be scrutinised with reference to the circumstances of the case.
Here, the plea was late. As discussed earlier, there was little to indicate remorse and little to be said by way of mitigation.
The applicant’s complaint of ‘unusualness’ did not go beyond pointing to what might be described as yardstick cases for comparable offending. It did not engage with the circumstances peculiar to this case or, critically, this applicant. In my view, it cannot be said, in the circumstances, that the applicant had a ‘claim’ to a non-parole period of, for example, half the head sentence. It was open to the judge to impose a head sentence of 10 years. That would have required an eight-year non-parole period. The applicant received a substantial benefit on account of his plea by the judge reducing the head sentence to below 10 years and imposing a substantially lower non-parole period than a 10-year sentence would have attracted. To reduce the non-parole period yet further would have been to extend an unwarranted double benefit on account of the plea.36
The applicant also referred to the submissions at sentencing, observing that neither party contended for a sentence that would involve a lengthy non-parole period. He also submitted that the prosecution did not contend for a sentence that would require the applicant to serve 80 per cent of the head sentence.
But ultimately it does depend on where your Honour assesses the criminality of the offending.
Conclusion
The application for leave to appeal is refused.
[2020] QCA 58. ↩
R v Free at [55]. ↩
R v Free at [67]. ↩
House v The King (1936) 55 CLR 499. ↩
Markarian v The Queen (2005) 228 CLR 357 at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). ↩
R v PAM [2011] QCA 36 at [32]. ↩
[2017] QCA 49. ↩
[2011] QCA 36. ↩
R v PAM [2011] QCA 36 at [33]. ↩
[2004] QCA 445. ↩
[2009] QCA 100. ↩
[2014] QCA 340. ↩
[2021] QCA 189. ↩
[2022] QCA 35. ↩
R
BFA [2025] QCA 259
(1936) 55 CLR 499
(2005) 228 CLR 357
The application for leave to appeal was refused ([52]).
BLEBY AJA: This is an application for leave to appeal against sentence. On 25 November 2024, the applicant pleaded guilty to one count of maintaining an unlawful sexual relationship with a child, contrary to s 229B(1) of the Criminal Code (Count 1 on the indictment) and two counts of rape contrary to ss 349(1) and (2)(a) of the Criminal Code (Counts 22 and 23 on the indictment). A judge of the District Court sentenced the applicant to nine years’ imprisonment in respect of Count 1 and six years’ imprisonment in respect of each of Counts 22 and 23. He ordered that the sentences be served concurrently and that the applicant was eligible for parole after serving six years’ imprisonment.
Prior to the appeal hearing, the sole ground of appeal complained that the non-parole period imposed was manifestly excessive. On the day of the appeal hearing, the applicant’s counsel advised that he had been instructed to seek leave to add a further proposed ground of appeal. The Court refused an application to adjourn the hearing for this purpose and directed the applicant to file a supplementary Outline of Argument supporting the application to raise the further ground. The Court indicated it would determine that application on the papers. The proposed new ground complains that the applicant was denied procedural fairness in not being permitted to address the Court on ‘the issue’ of the non-parole period of six years’ imprisonment.
The applicant kissed the complainant and they ‘made out’. The complainant said she did not think she really wanted to do it. The applicant said it would be fine, he would be gentle and asked if she trusted him. He asked if she wanted his love and said this was what they had to do. He removed her clothes and laid her on the bed. He kissed her body. She had ‘frozen’. He put lubricant on her and penetrated her vagina with his penis. The complainant cried, said it hurt and that she could not do it. The applicant stopped, went out and got her a glass of straight rum, saying it would calm her nerves. She drank it and then some more when the applicant offered it. The applicant asked if she wanted to try again. She laid down and the applicant again penetrated her vagina with his penis. She said that it really hurt, she could not do it, it was really sore and felt like fire. The applicant said, ‘You just have to trust me, you are just going to have to do it’.
The complainant felt she had no choice, and said, ‘Fine, just push it in then’. The applicant then ‘rammed’ his penis in. The complainant screamed in pain. The applicant covered her mouth with his hand, telling her not to scream. He continued to reassure her and tried to kiss her, before ejaculating in her vagina. He removed his penis. The complainant got up, went to the bathroom, saw blood coming from her vagina and vomited. The applicant asked if she was okay. She asked if he loved her and he said, ‘yes’. The complainant asked if he was happy, and he said yes. She replied, ‘okay, that is all that matters’.
About two weeks later, the applicant went to the complainant’s bedroom and said, ‘Quickly, mum has gone to the shops, let’s have sex’. The complainant said she did not want to. The applicant said they had to, as if they did not keep going, it would hurt like the first time every time. The complainant said, ‘Do I have to?’ and the applicant replied that yes, they did, but they had to be quick.
The complainant took her pants off. The applicant penetrated her vagina with his penis. The complainant yelled to stop as it really hurt. There was a knock on the bedroom door. The applicant put his penis away and the complainant put her pants on. The applicant opened the door to his father, who questioned what was going on. They both said, ‘Nothing’.
On 16 July 2020, the complainant attended at a police station where a pretext call was conducted. They applicant made admissions to being in relationship and said words to the effect of, ‘What are you talking about babe, we were in a relationship’.
In this regard, the applicant invoked several authorities by reference to which he asserted a ‘yardstick’ from which the non-parole period in the present case deviated too extravagantly. While a granular comparison of authorities is unlikely to be helpful, given different aggravating and mitigating features,6 a broad comparison does tend to indicate the approach of the courts in broadly comparable situations:
I have set out the prosecutor’s submissions earlier. They were framed carefully. The prosecutor accepted that it was open to the judge to set a non-parole period at or below the 50 per cent mark, if the head sentence was set below 10 years. However, he also submitted that it was open to impose a head sentence of 10 years. That enlivened the prospect of a non-parole period of up to eight years. In any event, the prosecutor’s submissions about the possibility of a lower non-parole period were qualified:
[2022] QCA 71. ↩
[2008] QCA 86. ↩
R v Kitson [2008] QCA 86 at [11]. ↩
R v Kitson [2008] QCA 86 at [17]. ↩
R v Kitson [2008] QCA 86 at [21]. ↩
[2020] QCA 124. ↩
R v JAB [2020] QCA 124 at [28]. ↩
R v Cunningham [2005] QCA 321 at 5. ↩
R v Kitson [2008] QCA 86 at [21]. ↩
R v Moodie [1999] QCA 125 at 5. ↩
R v Dodd [2010] QCA 31 at [13]. ↩
R v JAB [2020] QCA 124 at [29]. ↩
(2017) 268 A Crim R 240 at [55] – [56]. ↩
[2021] QCA 88. ↩
R v FVN [2021] QCA 88 at [12]. ↩
R v FVN [2021] QCA 88 at [15]. ↩
The applicant was being imprisoned for a sexual offence and had no current parole eligibility date or parole release date. See: PSA s 160D(3). ↩
R v FVN [2021] QCA 88 at [30]. ↩
R v FVN [2021] QCA 88 at [29], quoting R v Randall [2019] QCA 25 at [38]. ↩
R v FVN [2021] QCA 88 at [31]. ↩
R v FVN [2021] QCA 88 at [32]. ↩
See R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22 at [40] (Boddice J, Philippides and McMurdo JJA agreeing). ↩