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[2026] QCA 49
respondent. Application for leave to appeal sentence refused.
The Court of Appeal refused EAE’s request for permission to appeal his sentence. It accepted that he had mitigating circumstances, including remorse, rehabilitation, a good work history and a long period between the offending and sentence. But it considered those factors alongside the seriousness of the offences, the complainant’s age, the breach of trust and the harm described to the sentencing judge. It also noted that the guilty pleas came shortly before trial. The Court concluded that the four months of actual custody was not unreasonable or plainly unjust and that the sentencing judge had considered harm and mitigation.
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1,996 words · generated 08/10/2026
In R v EAE [2026] QCA 49, the Queensland Court of Appeal considered an application for leave to appeal sentence. Boddice JA delivered the judgment, with Bradley JA and Freeburn J agreeing. The Court refused leave.
No linked legislation citations have been extracted yet.
EAE had pleaded guilty to two counts of indecent treatment of a child under 16 under his care. Both offences were domestic violence offences. Each sentence was 12 months’ imprisonment, suspended after the applicant served four months in custody, with an operational period of 12 months.
The offending took place over two nights in 2016. The complainant was 12 to 13 years old. The applicant, then aged 34, had been in a relationship with her mother for more than a decade, beginning when the complainant was about one. The judgment describes him as having been, in effect, the complainant’s stepfather. The offending occurred shortly after that relationship ended.
The acts were different but occurred in the same context of the complainant staying at the applicant’s residence. On the first night, he put his hands under her shirt and held her breasts “for a not inconsiderable period of time”. On the second, he pulled her on top of him and pressed his erect penis against her genitals. Both were clothed.
The complaint was made to police in 2023, and EAE was charged in 2024. An indictment was presented in the District Court on 3 March 2025. It included two other offences. After a pre-trial application concerning access to counselling notes, and prosecution submissions, those other counts were discontinued when EAE pleaded guilty to the two remaining counts. The pleas were entered shortly before the listed trial.
The applicant challenged the requirement to serve actual custody, rather than contending that the 12-month head sentence itself was excessive. The application also raised whether the sentencing judge had failed to determine the degree of harm. The Court rejected both proposed grounds.
The Court’s reasoning had four main parts.
First, it applied the manifest excess standard stated in the judgment. A sentence is not manifestly excessive simply because it differs, even markedly, from sentences in comparable cases. The difference must demonstrate a misapplication of principle and warrant the conclusion that the sentence is “unreasonable or plainly unjust”. The Court found that threshold was not met.
Second, the Court considered the claimed exceptional circumstances. The sentencing judge had identified remorse, the absence of other criminal history, the time that had elapsed, employment history, low risk of reoffending, rehabilitation and some cooperation with the justice process. The Court did not say these matters were irrelevant. Rather, it agreed that they did not amount to exceptional circumstances in the context of the offending. Boddice JA observed that “Cooperation, remorse, delay and rehabilitation are not unusual features in respect of sexual offenders against members of their own family.”
The judgment describes s 9(4) of the Penalties and Sentences Act as requiring an actual term of imprisonment for offences of this kind unless exceptional circumstances exist. It records that the sentencing judge considered the asserted mitigating factors but concluded they were not exceptional. The Court agreed with that assessment.
Third, the Court weighed those matters against the seriousness and context of the offending. It emphasised the complainant’s youth and vulnerability, the applicant’s long-standing parental role, and the “gross breach of trust” involved. The complainant might have expected protection from someone who had acted as her stepfather. The offending took place at the applicant’s residence while she was staying there. The judgment also referred to the sentencing judge’s finding that the abuse had predictable effects and, according to the victim impact material, had contributed to depression and self-harm.
Fourth, the Court considered the timing and practical effect of the pleas. The sentencing judge had recognised cooperation and remorse, and that the pleas spared the complainant from giving evidence and avoided the expense of a trial. But the Court noted that the pleas were not early. They followed cross-examination at committal and an application to access counselling notes, and were entered on the eve of trial. It also observed that the sentence gave the applicant the “considerable benefit of certainty of release”.
Together, those considerations led the Court to conclude that four months of actual custody was within a sound exercise of sentencing discretion. The result was not unreasonable or plainly unjust.
The judgment does not present itself as creating a new sentencing rule. Instead, it applies two propositions stated in the reasons: the manifest excess standard and the exceptional-circumstances requirement described as arising under s 9(4) of the Penalties and Sentences Act.
For manifest excess, the Court expressly rejected a simple comparison-based approach. The fact that a sentence is different, even markedly different, from comparable cases is not sufficient. The applicant must show a difference that evidences a misapplication of principle and makes the sentence unreasonable or plainly unjust. This frames comparison as relevant but not decisive on its own.
For actual custody, the judgment records the sentencing judge’s understanding that an actual term had to be served unless exceptional circumstances existed. It then upholds the assessment that remorse, cooperation, delay and rehabilitation did not cross that threshold in this case. The reasons are tied to the circumstances before the Court, including the nature of the offences and the breach of trust.
The Court said the sentence was consistent with R v BEU [2025] QCA 155, R v TAK [2018] QCA 333, and R v GAW [2015] QCA 166. The supplied judgment does not set out the facts or detailed reasoning in those cases. It is therefore possible to say only that the Court identified them as comparable authority with which the sentence was consistent. The reasons do not support a fuller account of what those cases decided.
As to what changed after this decision, the supplied judgment establishes the Court’s disposition in this particular appeal, but does not provide later decisions or legislative developments. It would be unsafe to infer from this text alone that the judgment altered the governing law. Its stated contribution is an application of the articulated sentencing and appellate principles to the facts before it.
The judgment does not use numbered paragraphs. The quotations below therefore cannot be linked to paragraph numbers without inventing them.
“To succeed, the applicant must establish that the sentence was so different as to evidence a misapplication of principle to warrant a conclusion that the sentence is unreasonable or plainly unjust.”
In plain English, the applicant needed more than an argument that another sentence might have been imposed or that this sentence differed from sentences in other cases. The asserted difference had to reveal a legal or sentencing error serious enough to make the result unreasonable or plainly unjust.
“Cooperation, remorse, delay and rehabilitation are not unusual features in respect of sexual offenders against members of their own family.”
The Court treated the mitigating matters as relevant, but not inherently exceptional. Its point was contextual: those features, without more, did not require the sentencing judge to find exceptional circumstances in this case.
“The applicant’s offending involved a gross breach of trust in respect of a vulnerable young girl who was entitled to expect he would protect her, not abuse her.”
This explains the weight given to the relationship and the complainant’s expectations. The applicant’s prior role in her life was not merely background; the Court treated the resulting breach of trust as a significant aggravating feature.
“The consequences of the offending were profound and are ongoing.”
The Court accepted the significance of the harm described in the sentencing material. The judgment does not make a medical finding that the offending caused the complainant’s bipolar disorder. It reports the victim impact material and the complainant’s assertion about the effect of the offending, and relies on the sentencing judge’s treatment of harm.
The decision is most directly relevant to sentence appeals involving sexual offending against a child within a family or family-like relationship, where an offender argues that mitigation should have been treated as exceptional circumstances justifying avoidance of actual custody. Its reasoning is particularly connected to a combination of:
The judgment is not a general ruling that those mitigating factors can never constitute exceptional circumstances. Its language addresses their significance “in respect of sexual offenders against members of their own family” and applies them to the particular circumstances identified in this case.
It is also relevant to the way a manifest excess argument should be framed. The decision states that a comparison with other sentences is not sufficient by itself. The focus remains whether the sentence demonstrates a misapplication of principle and is unreasonable or plainly unjust.
The decision should not be treated as establishing a fixed sentencing tariff for all indecent treatment offences, or for every case involving a family relationship. The judgment expressly considers the particular offending, trust relationship, harm, mitigation and plea timing. It does not provide a numerical sentencing range.
The supplied judgment contains no later decisions discussing R v EAE [2026] QCA 49. No conclusion about subsequent approval, distinction, or treatment can be drawn from the material provided.
Within this judgment, the Court refers to R v BEU [2025] QCA 155, R v TAK [2018] QCA 333, and R v GAW [2015] QCA 166 as comparable authority. Boddice JA says the sentence was “consistent with” those cases. The judgment does not reproduce their facts or explain their reasoning in detail, so their precise relationship to each factual feature of EAE cannot be reconstructed from this source alone.
The Court of Appeal’s decision is unanimous on the result: Bradley JA and Freeburn J each agreed with Boddice JA. The judgment does not contain separate concurring reasons.
The supplied reasons leave several limits that matter when using the case.
First, the judgment does not provide paragraph numbers, a full quotation of s 9(4), or further statutory context. The statutory rule should therefore be described only as the judgment describes it: actual imprisonment was required for offences of this kind unless exceptional circumstances existed.
Second, the Court does not set out the facts, sentences or reasoning in BEU, TAK or GAW. The decision establishes that it regarded the sentence as consistent with those authorities, but not exactly how each comparison was made.
Third, the Court does not explain in detail how it assessed the causal relationship between the offending and the complainant’s mental health conditions. It reports the sentencing judge’s reference to depression and self-harm and the complainant’s assertion about bipolar disorder. It would go beyond the text to say that the Court made a clinical finding that the offending caused bipolar disorder.
Fourth, the decision does not quantify the separate weight given to each mitigating or aggravating factor. It confirms that the matters were considered and explains why, cumulatively and in context, they did not establish manifest excess. It does not provide a formula for weighing those matters in other cases.
Finally, the reasons are specific to an application for leave to appeal sentence and the facts described. The decision does not determine the sentence that should be imposed in other cases with different offending, relationships, plea timing, harm evidence, or statutory circumstances.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
[2026] QCA 49
COURT OF APPEAL
BODDICE JA
BRADLEY JA
FREEBURN J
CA No 27 of 2026
DC No 60 of 2025
THE KING
v
EAE Applicant
BRISBANE
FRIDAY, 20 MARCH 2026
JUDGMENT
BODDICE JA: The applicant makes an application for leave to appeal sentence. The grounds, if leave is granted, are that the sentence was manifestly excessive and that the sentencing judge erred in failing to find the degree of harm. The sentence in question relates to two counts of indecent treatment of a child under 16 under care to which the applicant pleaded guilty on 23 January 2026. Both offences were domestic violence offences.
On each count the applicant was sentenced to 12 months’ imprisonment, suspended after serving four months’ imprisonment for an operational period of 12 months. Both offences were committed between 20 June 2016 and 29 October 2016 against the same complainant, a girl aged 12 to 13 years. The applicant was aged 34 years at the time of the commission of the offences.
Prior to the commission of the offences, the applicant had been in a relationship with the mother of the complainant for over a decade. That relationship had started when the complainant was about one year of age. Throughout the relationship, the applicant was, in effect, her stepfather. The offences were committed shortly after that relationship ended.
The offences were committed over two nights in circumstances where the complainant was staying at the applicant’s residence. The first offence involved the applicant putting his hands under the complainant’s shirt and holding her breasts for a not inconsiderable period of time. The second offence committed the following night involved the applicant pulling the complainant on top of him and pressing his erect penis against the complainant’s genitals. Both were clothed at the time.
Although the offences were committed in 2016, a complaint was not made to police until 2023. The applicant was charged with the offences in 2024. An indictment containing the offences was presented in the District Court on 3 March 2025. That indictment contained two other offences. The procedural history for the indictment was that there was a pre-trial application on 26 September 2025 in relation to access to counselling notes.
The trial of the indictment was then listed to commence in the week of 19 January 2026. Prior to the commencement of the trial, an initial submission was made to the prosecution to drop the charges entirely, which was rejected. A subsequent submission was partially accepted with the consequence that the other counts on the indictment were discontinued upon the applicant entering pleas of guilty to the two counts.
The sentencing judge accepted that there had been some cooperation in the administration of justice by the applicant’s pleas and that those pleas were consistent with remorse for his conduct. A positive benefit of the pleas was that it had spared the complainant from having to give evidence as well as sparing the community from the expense of a trial. The sentencing judge recognised that the applicant was to be given due credit for that cooperation.
The sentencing judge observed that another important matter on sentence was the harm caused to the complainant as a result of the offences. The sentencing judge found that the abuse “has had predictable effects upon her and as indicated in the victim impact material, has contributed to her depression and self-harm.” That was a reference to the complainant stating that she had been diagnosed with bipolar disorder and other mental health conditions and an assertion by the complainant that the bipolar disorder, whilst genetic, had been triggered and its severity increased by reason of the applicant’s offending conduct.
The sentencing judge said that the applicant was now 43 years of age, had no prior or subsequent criminal history, had successfully run his own business for some years and had seen a psychologist about depression. The sentencing judge recorded that a critical issue in the sentencing of the applicant was the application of section 9(4) of the Penalties and Sentences Act, which requires the applicant to serve an actual term of imprisonment for offences of the kind to which he had pled guilty unless there were exceptional circumstances.
The sentencing judge said that the matters said to support exceptional circumstances included the applicant’s remorse, absence of other criminal history both before or since the offending, the long period of time that had elapsed since the commission of the offences, the positive employment history, the low risk of recidivism and the applicant’s steps towards rehabilitation.
The sentencing judge accepted those factors and recognised that the applicant had to some extent cooperated with the administration of justice, but found that those matters did not amount to exceptional circumstances. There was nothing particularly exceptional, the sentencing judge said, about men who were otherwise of good character and with good work, sexually abusing daughters and then acknowledging their responsibility for those crimes, including exhibiting remorse.
The sentencing judge found: “When seen in the context of the conduct for which you are to be sentenced, I am not persuaded that your case is exceptional. That context includes the nature of your offences, which involve the touching of this child’s breasts and the pressing of your penis against the area of her genitals and the gross breach of trust inherent in a father sexually abusing their own child. The harm caused, as demonstrated by the victim impact material, is also an important factor.”
The applicant does not contend that a head sentence of 12 months’ imprisonment was manifestly excessive. His contention is that the requirement that he serve actual custody rendered the sentence manifestly excessive. In support of that contention, the applicant submits that the sentencing judge erred in not recognising delays, efforts of rehabilitation and the cooperation and remorse shown by the pleas of guilty. In the initial application, the applicant had also relied on an error in not making a finding as to any degree of harm, but at the hearing of the application that was the subject of an amendment by way of a second ground.
In order to succeed on a ground of manifest excess, it is not sufficient for the applicant to establish that the sentence imposed was different or even markedly different to the comparable cases. To succeed, the applicant must establish that the sentence was so different as to evidence a misapplication of principle to warrant a conclusion that the sentence is unreasonable or plainly unjust. A consideration of the circumstances supports a conclusion that the sentence imposed was not manifestly excessive.
First, the sentencing judge was plainly correct in concluding that the mitigating factors in the applicant’s favour were not in the nature of factors warranting a conclusion there were exceptional circumstances. Cooperation, remorse, delay and rehabilitation are not unusual features in respect of sexual offenders against members of their own family. Accordingly, the applicant was properly required to serve actual custody for the offences.
Second, the sentence imposed fell within a sound exercise of sentencing discretion. Not only was it consistent with comparable authority, that is R v BEU [2025] QCA 155, R v TAK [2018] QCA 333, and R v GAW [2015] QCA 166, it evidenced a balance between the significant aggravating features, including the gross breach of trust involved in the circumstances of the applicant’s offending, and the significant mitigating features in the applicant’s favour.
Third, the sentencing judge did not fail to determine the degree of harm or have regard to the factors of delay, remorse and rehabilitation. To the contrary, his sentencing remarks considered those matters in the context of the applicable sentencing principles.
Fourth, the sentence requiring the applicant to serve four months of a 12-month sentence in actual custody is neither unreasonable nor plainly unjust. The applicant’s offending involved a gross breach of trust in respect of a vulnerable young girl who was entitled to expect he would protect her, not abuse her. The offending occurred in the sanctity of what was effectively her home on those nights.
The consequences of the offending were profound and are ongoing. The applicant’s pleas of guilty were not early and occurred on the eve of a trial after cross examination at committal and after an application to access the complainant’s counselling notes. The sentencing also afforded the applicant the considerable benefit of certainty of release. As neither proposed ground of appeal is made out, I would order that the application for leave to appeal sentence be refused.
BRADLEY JA: I agree.
FREEBURN J: I agree also.
BODDICE JA: The order of the Court is that the application for leave to appeal sentence is refused.
R
EAE [2026] QCA 49
Application for leave to appeal sentence refused.