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[2026] QCA 39
respondent. The application for leave to appeal against sentence was refused.
1 cited instrument linked from this judgment.
The Court of Appeal refused the applicant permission to challenge his sentences. It considered the five rape offences and strangulation together with the violence, degrading conduct, harm, domestic violence context, prior history, and the fact that the offences were committed while the applicant was on parole. The Court explained that other sentencing cases can provide useful comparisons but do not set a fixed scale or decide the sentence in a different case. It found no sentencing error and no basis in the cited cases for concluding that the sentence reflected a misapplication of principle.
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1,909 words · generated 08/10/2026
In R v BFD [2026] QCA 39, the Queensland Court of Appeal considered an application for leave to appeal against sentence. The applicant had pleaded guilty to five counts of rape and one count of strangulation. All six offences were domestic violence offences. The offences occurred during three episodes over ten days in February 2023, when the applicant was 30 and the complainant was 19 ([8]).
The offending was committed against a recent partner who had a seven-month-old daughter. The episodes involved repeated sexual violence, physical restraint and assault, strangulation, and degrading conduct. The complainant sustained physical injuries and significant ongoing psychological harm. Her victim impact statement described her as harmed, tormented and broken, and recorded that she had at one point contemplated suicide ([14]).
Count 4 was treated as the objectively most serious rape. The sentencing judge imposed ten years’ imprisonment for that count, nine years for each of Counts 2, 9 and 10, five years for Count 8, and four years for the strangulation offence in Count 5. The terms were concurrent with one another. Because the applicant was on parole when he committed the offences, the new sentences were ordered to be served cumulatively on the period remaining from an earlier sentence. The judge also made a Serious Violent Offending (SVO) declaration for Count 4, requiring the applicant to serve 80 per cent of its ten-year sentence ([3]-[5]).
The applicant argued that the overall sentencing result should not exceed nine years and that parole eligibility should be fixed at the halfway point ([6]). The Court of Appeal refused leave to appeal. Muir J gave the substantive reasons, with Boddice JA and Doyle JA agreeing ([1]-[3], [7]).
The Court’s reasoning addressed whether the sentencing judge had made an error that justified appellate intervention. The applicant relied substantially on comparisons with sentences in other cases. Muir J accepted that comparable cases can help a court assess how common sentencing factors have been treated. But they do not prescribe a numerical limit for another case or define the outer boundary of the sentencing discretion. “Each case turns on its facts” ([27]).
The Court assessed the offending as a whole. Each offence was objectively serious, and the combination involved five rapes and one strangulation, across three separate episodes. The conduct included penetration of the complainant’s mouth, vagina and anus, and strangulation until she lost consciousness. The Court described the offending as protracted, domestically violent, manipulative, sexually demeaning, degrading and threatening ([34]). The offences were committed by a mature man against a younger partner, while he was on parole for domestic violence offending against another complainant ([34]).
The Court also identified the consequences for the complainant and the limited but real utilitarian value of the guilty plea. The plea spared her from giving evidence at trial, but it was entered only a few days before trial and in the face of what the sentencing judge described as a strong Crown case ([34]). The judgment records that deterrence, denunciation, and the domestic violence aggravation called for a heavy sentence ([35]).
The applicant had a relevant criminal history, including previous domestic violence offending against two other complainants. The sentencing judge had observed that there was no evidence that the applicant had undertaken, or shown interest in, domestic violence awareness or treatment courses ([18]). The Court also noted that he committed the present offences while on parole ([25]).
The Court reviewed the applicant’s authorities individually rather than treating them as a numerical tariff. In NT, it noted that there was only one rape, and that the earlier court had described the decision not to make an SVO declaration in that case as “overly generous” ([28]). LAU involved three rapes but no accompanying physical violence, and fewer rape offences ([29]). OAC involved very serious, protracted offending, but not the same number of repetitive, degrading and violent rapes; the Court said it nevertheless supported an SVO declaration where serious protracted physical, psychological and sexual violence was present ([30]). OAD involved a different category of offending and other circumstances affecting the gravity of its sentences ([31]). VN involved comparable degradation but not the same level of physical violence, and the Court considered it supportive of the sentence imposed in this case ([32]).
Finally, the sentencing judge had adjourned the sentencing hearing for several days to consider the parties’ substantial disagreement about the appropriate sentence. The Court considered that the judge had carefully considered the competing submissions and imposed a reasoned sentence ([36]). It concluded that the applicant had not established error and that the comparisons did not disclose a misapplication of principle ([37]).
The judgment discusses two strands of sentencing law. First, it explains the role of comparable cases: they can assist with common factors, but do not control the result in an individual case ([27]). This is applied in the Court’s comparison of the facts and outcomes in NT, LAU, OAC, OAD and VN ([28]-[32]). The judgment does not treat any one of those cases as fixing a maximum sentence for the present facts.
Second, Muir J refers to earlier Queensland Court of Appeal discussion of sentences for rape accompanied by serious violence or prolonged criminality. The judgment says that Benjamin and Buchanan indicate that, where the offender is entitled to the benefit of a guilty plea, sentences at the upper end of the 10-to-14-year range may be warranted in such cases ([33]). This is a summary of the authorities, not a statement that every case with those features must receive a sentence in that range.
The judgment then identifies a statutory change after Benjamin and Buchanan were decided. In 2016, s 9(10A) was inserted into the Penalties and Sentences Act 1992 (Qld). As described by Muir J, it requires the court to treat the fact that an offence is a domestic violence offence as an aggravating factor, except in exceptional circumstances ([33]).
The Court’s statement about the possible effect of that amendment is expressly prospective and cautious: it “may support a future increase” in the discussed 10-to-14-year range where rape is accompanied by serious violence or prolonged criminality in a domestic violence setting ([33]). That observation is not a quantified new sentencing range or a holding that the range has already changed. The judgment’s actual decision is narrower: on the facts before it, the applicant did not establish error, and the comparator cases did not establish a misapplication of principle ([37]).
At [27], Muir J says comparable cases “can help a judge to determine how factors in common should be treated” but “do not determine the sentence or mark the outer bounds” of the discretion. In plain English, a court can use other cases as reference points, but it must still assess the particular offending, offender and sentencing factors before it. A difference in sentence from another case does not, by itself, prove error.
At [33], the judgment states that rape accompanied by serious violence, prolonged criminality, or both may warrant sentences at the upper end of the 10-to-14-year range where the offender receives the benefit of a guilty plea. The passage reports the effect the Court attributed to Benjamin and Buchanan. It should be read alongside the Court’s qualification that both decisions pre-dated s 9(10A), and its cautious observation that the domestic violence aggravation may support a future increase in that range.
At [34], the Court sets out the combined features it considered important: the number of rapes, their forms of penetration, strangulation, the repeated episodes, degradation, domestic violence, the age and relationship context, the applicant’s parole status, the complainant’s harm, and the late guilty plea. The point is cumulative. The Court did not isolate one fact as determinative.
At [37], the Court concludes that the applicant had “not established any error” and that the comparable cases did not support a conclusion of misapplied principle. In plain English, the Court was not persuaded that the sentencing judge had made an error warranting appellate intervention.
The decision is relevant where an applicant challenges a sentence by arguing that it is out of line with sentences imposed in other cases. It directly addresses the limits of comparator-based arguments: similarities can be informative, but differences in the number of offences, degree of violence, duration, harm, plea and offender history may materially affect the comparison ([27]-[32]).
It is particularly relevant to sentencing for multiple rapes in a domestic violence setting where the conduct includes serious physical violence, strangulation, degradation, repeated episodes or substantial harm. The Court treated the interaction of those factors as important, rather than assessing the rape counts in isolation ([34]-[35]). Its discussion of s 9(10A) is relevant where the offences are domestic violence offences, because the provision, as described in the judgment, makes that character aggravating unless exceptional circumstances apply ([33]).
The decision also addresses a case involving an offender who committed new offences while on parole, had prior domestic violence offending, and entered a late guilty plea. Those matters formed part of the Court’s assessment of the circumstances and the weight of the plea’s utilitarian benefit ([25], [34]). The judgment does not establish a fixed sentence for any such combination. It emphasises fact-specific evaluation.
The supplied judgment contains no information about how later courts have treated R v BFD. It was delivered in March 2026, and the text does not cite any subsequent decision applying, distinguishing or otherwise discussing it. On the available source, no claim about later judicial treatment can be made.
The judgment itself discusses earlier cases. It treats NT, LAU, OAC and OAD as comparators and explains why their facts differ from the present offending ([28]-[31]). It regards VN as supporting the sentence rather than demonstrating error ([32]). It also follows the sentencing discussion in Benjamin and Buchanan concerning rape accompanied by serious violence or prolonged criminality ([33]). These are the relationships described by this Court, not evidence of later treatment of BFD.
The judgment does not set out a revised numerical range after the introduction of s 9(10A). It says only that the provision may support a future increase in the discussed range where rape is accompanied by serious violence or prolonged criminality in a domestic violence setting ([33]). The judgment therefore leaves open how later courts will describe or apply any such change, and how the aggravating factor will interact with other features in cases with materially different facts.
The reasons also do not provide a complete account of the statutory operation of SVO declarations or the precise legal consequences of the declaration beyond stating that this declaration required service of 80 per cent of the Count 4 sentence ([5]). The decision’s focus is whether the sentence was excessive and whether the sentencing discretion was exercised erroneously.
Finally, the case does not decide that a particular number of rape counts, level of violence, or degree of harm necessarily requires a ten-year sentence or an SVO declaration. Its central caution is that comparable cases do not dictate an outcome and each matter turns on its facts ([27]). The Court’s result depends on its assessment of the combined circumstances in this particular record.
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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 BFD [2026] QCA 39
PARTIES: R / v / BFD / (applicant)
FILE NO/S: CA No 105 of 2025 / DC No 3707 of 2024
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Gladstone – Date of Sentence: 16 April 2025 (Clarke DCJ)
DELIVERED ON: Date of Order: 2 March 2026 / Date of Publication of Reasons: 10 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 2 March 2026
JUDGES: Boddice JA, Doyle JA, Muir J
ORDER: Date of Order: 2 March 2026 / The application for leave to appeal against sentence is refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to five counts of rape (Counts 2, 4, 8, 9 and 10) and one count of strangulation (Count 5) – where the counts of the rape offences and the strangulation offence were domestic violence offences – where the applicant was sentenced to 10 years’ imprisonment on Count 4, nine years’ imprisonment on each of Counts 2, 9 and 10, five years’ imprisonment on Count 8 and four years’ imprisonment on Count 5, all to be served concurrently – where a Serious Violent Offending declaration was made in respect of Count 4 requiring the applicant to serve 80 per cent of the sentence – where the applicant seeks leave to appeal against the sentence on the ground that it is manifestly excessive – where the applicant contends the sentence ought not to have exceeded nine years’ imprisonment with parole eligibility fixed at the halfway point – where the applicant alleges the sentencing judge made errors – where the applicant relies on those errors in support of his application – whether the primary judge erroneously exercised the sentencing discretion – whether the sentence was manifestly excessive / Penalties and Sentences Act 1992 (Qld), s 9 / House v The King (1936) 55 CLR 499; [1936] HCA 40, cited / R v Benjamin (2012) 224 A Crim R 40; [2012] QCA 188, followed / R v Buchanan [2016] QCA 33, followed / R v LAU [2022] QCA 37, considered / R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, cited / R v NT [2018] QCA 106, considered / R v OAC [2024] QCA 52, considered / R v OAD [2024] QCA 189, considered / R v VN [2023] QCA 220, followed
COUNSEL: H J Rafter for the applicant / D Nardone for the respondent
SOLICITORS: Potts Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent
BODDICE JA: I have read the reasons for judgment of Muir J. Those reasons accord with my reasons for joining in the making of the orders on 2 March 2026.
DOYLE JA: I have read and agree with the reasons for judgment of Muir J. They fully accord with my reasons for having joined in the order given on 2 March 2026 refusing the applicant leave to appeal.
MUIR J: In April 2025, the applicant pleaded guilty to and was convicted of five offences of rape (all domestic violence offences) and one offence of strangulation in a domestic setting. In adopting the Nagy approach to the sentence, the sentencing judge imposed a sentence of 10 years’ imprisonment on Count 4 which was categorised as objectively the most serious of the offending.1 The applicant was sentenced to lesser concurrent terms of imprisonment of 9 years for the rape offences the subject of counts 2, 9 and 10, and 5 years for the count 8 rape offence. The applicant was sentenced to a period of 4 years’ imprisonment on count 5 (the strangulation offence).
All sentences were to be served concurrently with each other but, as the applicant was on parole at the time of the offending, the sentences were ordered to be served cumulatively on the period the applicant was liable to serve from a previous sentence imposed in the Magistrates Court.
The existing Protection Order naming the complainant and her daughter as the aggrieved was extended by consent until 2045. The declarable time of 738 days of pre-sentence custody was declared as time served under the sentence. The mandatory Serious Violent Offending declaration with respect to Count 4 requiring the applicant to serve 80 per cent of the sentence of 10 years’ imprisonment was also made.
The applicant contends that the “synthesis” of the sentencing considerations in this case ought to have resulted in a global sentence of no more than 9 years with parole eligibility fixed at the halfway point of the sentence.2 That was the sentence submitted before the sentencing judge. It is implicit by this submission that the applicant submits that the sentence of 10 years with the automatic SVO declaration was plainly unjust or unreasonable such that this Court should infer error of the type identified in the final category of the House v The King.3
On 2 March 2026, the Court ordered that Leave to Appeal sentence be refused with reasons to be published at a later date. These are my reasons for joining in the making of those orders.
Facts of the offending
The circumstances of the offending were reduced to an agreed statement of facts which was tendered at the sentence. The offending occurred on three separate occasions over the course of 10 days in February 2023. It involved violent, demeaning, and degrading conduct perpetrated by the applicant as a 30-year-old man on the 19-year-old complainant, a vulnerable young woman, with a seven-month-old daughter, who had recently commenced a relationship with the applicant.
The first offending occurred on 14 February 2023, the applicant and the complainant went to a hotel for Valentine’s Day. Whilst there, the applicant, who was thickly set and a head taller than the complainant, forced the complainant’s head into a toilet bowl in the bathroom and vaginally raped her. While this was happening, the applicant asked the complainant to tell him about how she was sexually abused as a child. She refused to do so. The complainant tried to get away but the more she resisted the further the applicant pushed her head into the toilet bowl. Whilst penetrating the complainant, the applicant grabbed her bra and tied her hands together so she could not push him away. The complainant next remembered waking up on the bed with a belt buckled tightly around her neck. The applicant removed the belt and the complainant tried to leave but the applicant started crying and threatened to kill himself. So, the complainant remained.
Three days later, on 17 February 2023, the applicant and the complainant were in a bedroom of a house they were sharing with another person. The complainant was lying on her back on the bed when the applicant took the complainant’s clothes off, lay on top of her, and vaginally raped her. The applicant held her down when she tried to move away. The applicant told the complainant to tell him about when she was sexually abused as a child and, when she refused, he punched her to the lower back and repeated his demand. The applicant then wrapped a twisted t-shirt around the complainant’s neck, the complainant felt the t-shirt tighten and tried to grab it and pull it away as she was losing her breath. As the applicant was raping the complainant in this way, he told the applicant he would like to “fuck her lifeless body”.4
The applicant strangled the complainant until she lost consciousness. When the complainant woke up, the applicant was gone but she discovered that the applicant had not used a condom and had ejaculated inside her. The complainant felt as though the blood vessels in her face and right eye had burst and she struggled to eat or swallow for a few days because she was so sore. The applicant’s offending is all objectively serious, but these are the facts of the offending categorised as the most serious, that is Count 4 rape.
The third and last occasion was on 24 February 2023, when the complainant confronted the applicant about his previous behaviour. They were in the bedroom of the share house again. When the complainant tried to leave, the applicant stood in front of the doorway, tore off the complainant’s clothes, pushed her onto the bed, and then forced his penis into her mouth. The complainant tried to escape but the applicant hit her. The applicant then pushed the complainant onto her stomach and vaginally and anally raped her. The complainant tried to fight the applicant, but he was too strong, and he continued to hold her down pressing her head and body into the mattress. He again asked the complainant to tell him about the sexual abuse she had experienced as a child, and he hit her when she initially refused to do this. After the applicant fell asleep the complainant tried to get away, but the applicant awoke, and an argument followed which included a struggle and violence (not subject to any charges). Eventually the complainant was able to grab her daughter, leave the house and call Triple-0.
Applicant’s antecedents
The applicant was 32 years of age at the time of the sentence. He had a troubled upbringing. His father died by suicide when he was around 6 years of age, and he and his six siblings were raised by his mother. The applicant attended high school to year 10 and at one point he lived in a caravan because there was no room in the family home for him. The applicant’s mother’s second partner was an alcoholic and subjected the children to abuse.
The applicant became a builder’s labourer upon leaving school and worked in that industry for about 5 or 6 years. He was working as a labourer from about 2021 until his incarceration just prior to the present offences in February 2023. The applicant had worked as a landscaper whilst in custody and undertaken some rehabilitation including the six week MISI extended drug rehabilitation course. The applicant has a son, who is 11 years of age, from his first relationship and a daughter, who is 4 years of age, from a later relationship; both of whom he appeared to have some intermittent contact with.
The applicant has obviously grappled with a serious drug problem since adolescence. He commenced using cannabis at about 14 years of age. He then started using methylamphetamine when he was about 16 years of age. There were periods when he abstained from drugs whilst he was in employment, but he commenced using drugs upon his last release from prison just prior to the present offences. He was using GHB and methylamphetamine during the offending period.
Criminal History
The applicant has a relevant criminal history that contains 13 separate entries consisting of various drug, weapons and domestic violence offences committed on dates between February 2015, when he was 22, to June 2022, when he was 29. Relevantly, the applicant was sentenced in the Magistrates Court for previous domestic violence offending against two other complainants, on four separate occasions. Despite this, and as the sentencing judge observed, there was no evidence of any steps or interest by the applicant in undertaking courses in domestic violence awareness assessment or treatment.
On 3 September 2015, the applicant was sentenced for three contraventions of a domestic violence order and other offending. That offending involved a former partner with whom the applicant shares a child. The offending included breaching a protection order by sending hundreds of text messages; verbally abusing the complainant; grabbing and breaking her sunglasses, and following the complainant while they were both driving. The applicant was sentenced to 12 months’ probation for this offending.
Less than three months into the probation order the applicant offended by committing drug offences including producing and possessing dangerous drugs.
The applicant continued to offend by committing more drug offences and possessing a category A, B, or M weapon. In March 2017 he was again sentenced to a probation order and ordered to perform community service. These orders were also breached and dealt with in September 2018 when the applicant was sentenced for two counts of unlawful possession of weapons and restricted items, producing dangerous drugs, publishing instructions and other drug offences. The applicant was sentenced to a head sentence of 9 months’ imprisonment with an immediate parole release date. He was given a suspended sentence for the probation breach.
In July 2019 he was sentenced to a further suspended sentence for drug offences. That suspended sentence was breached when the defendant committed a wilful damage (domestic violence offence) in December 2020. The complainant was another ex-partner with whom the applicant shares a child. He assaulted the mother of the complainant and threatened the complainant when she tried to intervene by punching the front windscreen of her car causing it to crack.
The suspended sentence was again breached when the applicant was sentenced for contravening a domestic violence order in August 2022. On that occasion the applicant had an argument with the same complainant involved in the earlier wilful damage offence. That complainant threw a bag of nappies at him and the applicant responded by slapping the complainant on the face, then, when the complainant tried to call Triple-0, the applicant grabbed her phone to stop her.
In June 2022, the applicant contravened the same domestic violence order again after another argument with that complainant. This time he threatened to sell her for money and told her he had someone coming over now to “fuck her” and he again slapped the complainant across the face. The applicant was sentenced to 3 months’ imprisonment with parole release after serving 30 days.
Consideration
The applicant’s argument on appeal is underpinned by the notion that the sentence imposed was so different to sentences imposed in other matters of a similar level of criminality that, in all the circumstances, it should be concluded that there must have been some misapplication of principle.7
Comparable cases are, of course, not to be viewed as marking with numerical precision the outer bounds of a sentencing judge’s permissible discretion in the sentencing of offending in another case. Those comparable cases can help a judge to determine how factors in common should be treated but they do not determine the sentence or mark the outer bounds of a judge’s sentencing discretion. Each case turns on its facts. The applicant relies upon five cases to support his argument: R v OAD [2024] QCA 189, R v NT [2018] QCA 106, R v OAC [2024] QCA 52, R v LAU [2022] QCA 37 and R v VN [2023] QCA 220.
In NT, the applicant was convicted after trial of seven offences: two counts of torture, common assault, rape, assault occasioning bodily harm, whilst armed, and two counts of deprivation of liberty.8 The applicant was 30 at the time of the offending and on probation, he had also just completed a period of parole, and had a poor criminal history, including for violence. He was sentenced to 9 years’ imprisonment with a parole eligibility date set after 3 years, 1 month; no SVO was made. Like the present case, the offences in NT were domestic violence offences and involved violent and degrading criminal conduct on several occasions.9 Whilst this Court found that the sentencing judge failed to consider the pre-sentence custody of 1 year, 9 months,10 it concluded that all the relevant factors supported a notional sentence of 10 years and 5 months reduced to 9 years to take into account the pre-sentence custody.11 This Court therefore refused the application for leave to appeal against the sentence. The conduct in NT was deplorable but a significant distinguishing feature from the present case is that only one of the offences involved a rape – which has a maximum penalty of life (and that was a rape by the insertion of an object into the complainant’s vagina).12 It is also instructive that Atkinson J observed (with Gotterson JA and Morrison JA agreeing) that the decision not to declare an SVO in this “egregious” type of rape and torture in a domestic relationship was “overly generous”.
R v Nagy [2004] 1 Qd R 63. ↩
Outline of Submissions on behalf of the Applicant at [2] and [51]. ↩
(1936) 55 CLR 499. ↩
Statement of Facts (for Sentence) at [12]. ↩
Sentencing Remarks TT 1-6, line 10. ↩
Outline of Submissions for the Crown (for Sentence) at [16]. ↩
Outline of Submissions on behalf of the Applicant at [30]. ↩
[2018] QCA 106. ↩
Ibid. ↩
[2018] QCA 106 at [34]. ↩
[2018] QCA 106 at [68]. ↩
Ibid at [6]. ↩
Ibid at [68]. ↩
[2022] QCA 37. ↩
R
BFD [2026] QCA 39
(1936) 55 CLR 499
The application for leave to appeal against sentence was refused.
The sentencing judge well described the offending as possessing an unimaginable level of depravity and particular cruelness; noting, the applicant’s apparent perverse sexual arousal from hearing about the complainant’s sexual abuse as a child.
Unsurprisingly, the complainant suffered physical and significant psychological harm because of the applicant’s conduct. In her “eloquent” victim impact statement (as the sentencing judge aptly described it)5, the complainant bravely described that the applicant’s actions had left her harmed, tormented, and broken; so much so, that at one point she felt so hopeless she was contemplating suicide.
The applicant was subject to this parole order when he committed the offences the subject of this application.
In LAU, the applicant was found guilty after trial of three counts of rape and one count of contravention of a domestic violence order.14 The offending involved serious sexual offending across multiple episodes with the applicant’s estranged wife. The three acts of rape occurred despite expressed resistance and in breach of a domestic violence order. The applicant showed no remorse, and the cross-examination of the complainant was belittling. The appellant was 31 at the time of the offences and 32 at sentence. The applicant was sentenced to a head sentence of 5 years, 6 months’ imprisonment which was ordered to be served cumulatively on an existing sentence of 18 months’ imprisonment, resulting in a total period of imprisonment of nearly 7 years’ imprisonment. A parole eligibility date was fixed at 2 years, 3 months after the end of the applicant’s existing sentence. The offending in LAU was not accompanied by physical violence and does not involve the same number of rape offences which limits the value of that case as a comparable.15
The same can be said of the case of OAC relied upon by the applicant.16 Again, and like the facts of NT, it involved a series of domestically violent offending some 32 offences over a protracted period – the majority of the offences related to physical domestic violence perpetrated against the applicant’s partner over an 8-month period.17 The most serious offending occurred within a window of 16 hours over two days. That offending involved torture, assault strangulation and rape. The complainant suffered considerable physical injuries. The applicant was 30 years of age at sentence and had a criminal history, including for domestic violence breaches. In that case, the applicant was sentenced to a head sentence of 9 years’ imprisonment on the torture offence with an SVO made with respect to the torture and rape offences. This required the applicant to serve 7 years, 2.5 months before being eligible for parole. This Court refused the application for leave to appeal against the sentence. Whilst this case involved extremely serious offending, it did not include the same number of repetitive, degrading and violent rapes as in the present case. But what this case does support, however, is the making of an SVO where there is serious, protracted physical, psychological, and sexual violence, such as in the present case.
The decision of OAD also reflects a different category of offending, concerning offending against a child, and offending that was not accompanied by violence or the demeaning and controlling behaviour of the current applicant.18 The value of that decision as a comparable is also limited because in that case the applicant had served about three years on remand for other child sex offences for which he was ultimately acquitted. That un-declarable time impacted on the gravity of the head sentences imposed.
In VN, the applicant was convicted after trial of three counts of rape, one count of assault with intent to commit rape and two counts of common assault.19 The offences were committed whilst the applicant was in an intimate relationship with the mother of the complainant, who was 17 to 18 years of age. The applicant was aged 40 to 41 at the time of the offences. The offending occurred over several months and involved some personal violence, threats, blackmail, abuse of power and trust, and where no remorse or insight was shown. This Court refused the application for leave to appeal against the sentence of 12 years’ imprisonment for each of the three counts of rape. While the applicant was controlling and manipulative in VN, his conduct did not involve the same levels of physical violence such as the strangulation offending in this case. But it did involve the same levels of degradation engaged in by the present applicant. As the respondent rightly submits, this case lends support to the sentence imposed in the present matter rather than suggest misapplication of principle.20
This Court has undertaken a review of various sentences for rape offending on numerous occasions; including where the offending is accompanied by serious violence. Such a review was conducted by Morrison JA in R v Buchanan with reference to Henry J’s review in R v Benjamin.21 The effect of these decisions is that where rape is accompanied by serious violence or prolonged criminality, or both, sentences at the upper end of the 10 to 14 year range where the offender is entitled to the benefit of a guilty plea may be warranted. Benjamin was referred to with approval in VN in the context of prolonged criminality and psychological harm being a relevant aggravating factor.22 Buchanan and Benjamin were heard and determined before the amendment to s 9 of the Penalties and Sentences Act 1992 (Qld) in 2016 by which sub-section (10A) was inserted.23 That section provides that a court must treat the fact that an offence is a domestic violence offence as an aggravating factor, save for exceptional circumstances. This amendment may support a future increase in the range of 10 to 14 years where rape offences are accompanied by serious violence or prolonged criminality in a domestic violence setting.
In the present case, each of the six offences the applicant pleaded guilty to are objectively serious in their own right. In combination the offending involved five acts of rape with penetration without consent of the complainant’s mouth, vagina, and anus and one count of strangulation to the point of unconsciousness. The offending was committed on three separate occasions over the course of 10 days. The facts reveal offending that was protracted, domestically violent, manipulative, sexually demeaning, degrading and threatening. It was behaviour committed by a mature man with relevant criminal history on his younger partner. The applicant committed the offending whilst on parole for other domestic violence offending involving a different complainant. The complainant suffered physical harm and significant ongoing psychological harm. There was utilitarian benefit gained from the applicant’s plea of guilty. Although she had already conferenced with the Crown Prosecutor, it spared the complainant the ordeal of having to come to court to give her evidence. It was, however, a late plea, only a few days before trial and made in the face of what the sentencing judge described as a strong Crown case.24
The maximum penalty for the offence of rape is life imprisonment. For the offence of strangulation it is 7 years’ imprisonment. Deterrence, both personal and general, as well as denunciation called for a heavy sentence as did the aggravating feature that the offences were all domestic violence offences.
The sentencing judge expressly adjourned the sentence for a few days so that he could consider the considerable disparity between the parties about the appropriate sentence. Having done this, the sentencing judge carefully considered all the submissions and competing factors and imposed a reasoned sentence that he considered to be just in all the circumstances.
For the above reasons, the applicant has not established any error in the exercise of the sentencing judge's discretion. Further, a review of the relevant comparable decisions does not support a conclusion that there was any misapplication of principle by the sentencing judge.
Ibid. ↩
[2024] QCA 52. ↩
[2018] QCA 106. ↩
[2024] QCA 189. ↩
[2023] QCA 220. ↩
Outline of submissions on behalf of the Respondent at [18]. ↩
[2016] QCA 33 at [81]; [2012] QCA 188. ↩
[2023] QCA 220 at [32]. ↩
[2016] QCA 33; [2012] QCA 188. ↩
Sentencing Remarks TT 1-5, line 27. ↩