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[2026] QCA 35
appellant. Extension of time granted. Appeal allowed. The original sentences were set aside except for the order requiring $5,000 compensation to be paid within one month. The respondent was sentenced to four...
The Court of Appeal held that a one-day delay was adequately explained and that the Attorney-General had good reason to bring the appeal. Because the offences were sexual offences against a child under 16, the legislation required actual imprisonment unless exceptional circumstances justified an exception. The Court concluded that the respondent's mitigating circumstances, considered together, did not justify immediate suspension of every sentence, given the seriousness and persistence of the offending and its continuation into adulthood. It allowed the appeal and ordered concurrent prison terms, with suspension only after 12 months' imprisonment.
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2,176 words · generated 08/10/2026
The Queensland Court of Appeal considered an Attorney-General's appeal against a sentence for nine sexual offences committed against the respondent's younger biological sister. Doyle JA gave the principal reasons. Boddice JA and Muir J agreed with those reasons and proposed orders ([1], [101]).
2 cited instruments linked from this judgment.
The respondent pleaded guilty and was convicted on 16 June 2025 of three counts of indecent treatment of a child under 12, five counts of indecent treatment of a child under 16, and one count of rape ([3]). The offending began in 1998, when the complainant was seven or eight and the respondent was 15 or 16, and continued through 2005. The later offending occurred when the respondent was an adult. The rape count concerned digital penetration when the complainant was 13 or 14 and the respondent was 21 or 22 ([37]-[49]).
On 22 September 2025, the District Court imposed 18 months' imprisonment on each of counts 1 to 3, two years on counts 4 to 6, 8 and 9, and four years on count 7. All terms were concurrent. The sentencing judge then suspended the whole of each term immediately for an operational period of four years. The judge also ordered $5,000 compensation ([4]-[5]).
The Attorney-General's sole appeal ground was that the sentence was manifestly inadequate ([6]). The notice was filed on 22 October 2025, one day beyond the prescribed period ([8]). The Court first had to decide whether to extend time. It did so, then allowed the appeal, preserved the compensation order, and imposed concurrent sentences that were suspended after 12 months' imprisonment for a four-year operational period. A warrant was to remain in the registry for 72 hours to allow the respondent to surrender into custody ([98]-[100]).
The appeal did not challenge the head sentences. The central sentencing issue was the decision to suspend all imprisonment immediately, rather than require any actual custody ([73], [95]).
The Court treated the extension-of-time question and the sentencing merits as related but distinct. Under s 671(3) of the Criminal Code (Qld), it described the test as whether there was “good reason” to extend time ([10]). Relevant matters included the delay and its explanation, prejudice to the respondent, the merits of the appeal, and the appeal's significance to the administration of criminal justice ([12]).
The delay was one day. The Attorney-General had received advice that incorrectly identified 22 October as the filing deadline, when the statutory deadline was 21 October ([13]-[14]). The Court considered the explanation adequate. It also recognised that allowing an extension exposed the respondent to the possibility of resentencing, the double-jeopardy concern associated with Crown sentence appeals. That prejudice mattered, but was not decisive: the appeal had good prospects and raised important questions about sentencing for sexual offences against children ([18]-[21]).
On the merits, s 9(4)(c) of the Penalties and Sentences Act 1992 (Qld) required an offender sentenced for a sexual offence against a child under 16 to serve an actual term of imprisonment unless exceptional circumstances existed ([23]-[25]). Section 9(6) required primary regard to specified matters, including the effect on the child, the nature of the offending, protection of children, deterrence, rehabilitation, the offender's antecedents and remorse ([23]).
Doyle JA explained that “exceptional” could not be assessed simply by identifying something unusual in the offender's history. The circumstances, considered in combination, had to justify not imposing actual imprisonment, having regard to the statute's ordinary position that such offenders serve actual imprisonment ([31]-[35]). The Court relied on the principles in R v Ebadi, R v BCX and R v Tootell that exceptional circumstances may result from a combination of features, but must be assessed in their statutory context ([26], [34]).
The Court weighed the respondent's mitigation against the offending and its effects. Mitigating matters included the guilty plea, limited criminal history, psychological treatment, a difficult personal history, family and business responsibilities, and the long interval since the offending ([58]-[68]). But Doyle JA identified limits to that mitigation: treatment followed arrest; the offending continued well beyond the respondent's adolescence; the respondent had not disclosed its full extent in his police interview; and the long period without further offending had passed without his acknowledging the conduct or seeking treatment independently ([61], [63], [67]).
The offending was prolonged, involved manipulation and force, and included rape committed as an adult against a child almost eight years younger. The Court also considered the complainant's evidence of serious ongoing effects ([69]). It concluded that the mitigating features, although material, were generally not atypical of cases involving sexual offences against children and did not justify departing from the statutory expectation of actual imprisonment ([70]-[71]).
The judge had described the question of actual imprisonment as a “very fine line” ([27]). Doyle JA concluded that there was no fine line on these facts. The decision to suspend all terms immediately was so far outside the proper exercise of sentencing discretion that it was unreasonable or plainly unjust under the appellate approach the parties had agreed applied ([28], [78]). The seriousness of the offending and the need for denunciation also supported actual imprisonment, alongside the purposes of sentencing set out in s 9(1) ([79]-[80]).
The judgment applied existing statutory and appellate principles; it did not announce a new statutory test. Before this decision, s 9(4)(c) already made actual imprisonment the required outcome for the relevant category of sexual offences against children, unless exceptional circumstances existed. Earlier Queensland Court of Appeal decisions had explained that exceptional circumstances may be established by an unusual combination of otherwise ordinary personal factors, but only after careful assessment of all circumstances and the legislative purpose ([26], [34]).
The decision sharpens the application of that approach. It emphasises that an unusual personal history is not enough by itself. The question is whether all relevant features, including the seriousness of the offending, make it appropriate to dispense with actual imprisonment ([33]). The Court also highlighted the relationship between s 9(4)(c) and the primary considerations in s 9(6), including victim impact, protection, deterrence and rehabilitation ([34]).
The decision also restates the “good reason” approach to a late Crown appeal. Double jeopardy is a relevant consideration, but the Court did not treat the possibility of resentencing as an automatic bar to an extension. The short delay, adequate explanation, appeal merits and public significance were considered together ([10]-[21]).
On Crown appeals, the judgment confirms that establishing manifest inadequacy does not end the inquiry. A residual discretion remains, and factors such as the Crown's position at sentence, delay, rehabilitation and reliance on the sentence may matter ([91]-[92]). Here, the Court found those considerations did not justify leaving the sentence undisturbed ([93]).
The judgment also addresses a prosecutor's qualified submission that exceptional circumstances might be open. It distinguishes a conditional acknowledgement that a finding could be open, depending on the judge's assessment, from a Crown concession that no actual custody should be imposed. The prosecutor had in fact sought actual custody. The Court found no prosecutorial failure that caused or contributed to the sentencing error ([83]-[90]).
At [10], Doyle JA said the extension question required “good reason”. In plain English, a short delay does not automatically justify an extension, and an arguable appeal does not automatically supply good reason. The Court must examine the circumstances, including the respondent's exposure to a more severe sentence.
At [18], the Court said prejudice from possible resentencing was relevant but should not be overstated. The respondent faced a real risk of imprisonment if the appeal succeeded, but the appeal right and the Court's statutory extension power meant that this risk had to be weighed against the other factors, not treated as determinative.
At [33], Doyle JA said the relevant features had to “make it appropriate that no term of actual imprisonment be served”. This is the key explanation of the statutory exception: the circumstances must justify avoiding the ordinary legislative outcome, not merely be unusual or sympathetic.
At [70]-[71], the Court described many of the mitigating features as not atypical in child sexual offence cases and concluded they did not warrant departure from the usual position. This does not mean such features are irrelevant. Rather, their weight depends on how they operate in the particular case and how they balance against the offending and statutory considerations.
At [78], the Court held that the sentencing decision fell within the scope for appellate intervention. In plain English, the Court considered the immediate suspension of every prison term to be more than a different but permissible sentencing choice. It was a manifestly inadequate result on the facts and the statutory framework.
At [93], the Court rejected the argument that its residual discretion should prevent resentencing. It relied on the Crown having sought actual custody below, the very short delay, the expedited hearing and the absence of evidence of continued rehabilitation after the relevant 2025 treatment sessions.
The judgment is most directly relevant where an adult is sentenced for sexual offences against a child under 16 and the sentencing court considers suspending all imprisonment without requiring any actual custody. The statutory issue arises because s 9(4)(c) requires actual imprisonment unless exceptional circumstances are established ([24]-[25]).
The decision is particularly pertinent where the offending is repeated or prolonged, continues into the offender's adulthood, involves a substantial age difference, or includes serious conduct such as rape. The Court's reasoning also gives importance to the offender's relationship of trust with the child, the use of manipulation or force, the harm described by the complainant, and the need for deterrence and protection ([69], [79]-[80]).
It is also relevant to Attorney-General sentence appeals filed outside time, especially where the delay is short and explained by an administrative or advice error. The case indicates that courts may weigh that explanation and the appeal's significance against the respondent's double-jeopardy prejudice ([12]-[21]).
Finally, the decision may assist where a respondent argues that the Crown should not be permitted to advance an appeal point because of what the prosecutor said at sentence. The reasoning turns on the specific distinction between a conditional submission that a finding is open and an actual Crown position seeking a non-custodial outcome. Here, the prosecutor had sought actual custody ([83]-[90]).
The judgment was delivered on 6 March 2026 and the supplied text contains no account of later judicial treatment of this decision. It is therefore not possible, from this judgment alone, to say whether later courts have followed, distinguished or questioned it.
The judgment itself discusses earlier decisions, rather than subsequent treatment of this case. It applies R v Gordon to the extension-of-time test ([10]-[19]); R v Ebadi, R v BCX and R v Tootell to the meaning and assessment of exceptional circumstances ([26], [34]); and Barbaro v The Queen on the role of comparable cases as a guide rather than a fixed boundary for sentencing discretion ([72]).
It considers decisions involving other sexual offences and sentences, including R v HCL, R v SAH, R v MBF, R v GBD and R v MCB ([75]-[77]). The Court observed that the cases involving adult offending to which it was referred all involved actual imprisonment ([77]). It also considered R v Wilton and R v Tricklebank in addressing the Crown's conduct at sentence and whether it could later advance an appeal argument ([87]-[90]).
The reasons do not define a comprehensive boundary for “exceptional circumstances”. The Court stresses a contextual, cumulative assessment, and its conclusion depends on the combination of offending, harm, mitigation and statutory purposes in this case ([31]-[35], [69]-[71]). The judgment does not establish that any single factor, such as a guilty plea, treatment, childhood abuse or a long offence-free period, can never contribute to exceptional circumstances.
The Court proceeded on the parties' agreed basis that the House v The King standard governed review of the sentencing judge's discretionary finding ([28]). It noted that aspects of that approach might need reconsideration in light of later High Court decisions, including GLJ and Moore (fn 11). The judgment therefore does not resolve every question about the precise appellate standard for reviewing an exceptional-circumstances finding.
The decision also does not specify how much weight a prosecutor's different or neutral position at sentencing would carry in another case. Here, the prosecutor sought actual custody, and the Court found no causal contribution to the sentencing error ([85]-[90]). A case involving a clear Crown concession, silence when suspension was raised, or a materially different position on appeal could require a separate assessment.
Finally, the reasons do not set a general threshold for when a short delay will justify an extension. The Court's conclusion depended on the one-day delay, the incorrect deadline advice, the appeal's prospects and its significance, alongside the respondent's prejudice ([13]-[21]). Those matters remain contextual rather than a mechanical checklist.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
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 GBV; Ex parte Attorney-General (Qld) [2026] QCA 35
PARTIES: R / v / GBV / (respondent) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)
FILE NO/S: CA No 259 of 2025 / DC No 263 of 2025
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT: District Court at Ipswich – Date of Sentence: 22 September 2025 (Chowdhury DCJ)
DELIVERED ON: 6 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 2 March 2026
JUDGES: Boddice JA, Doyle JA, Muir J
ORDERS: The extension of time to commence the appeal is granted. The appeal is allowed and the sentences below set aside, other than for the order made that compensation of $5,000 be paid to the complainant within one month. The respondent be sentenced as follows: On count 7, to four years’ imprisonment.On each of count 4, 5, 6, 8 and 9 to two years’ imprisonment.On each of count 1, 2 and 3 to 18 months’ imprisonment.That all sentences be served concurrently.That all sentences be suspended after 12 months’ imprisonment with an operational period of four years. A warrant issue for the arrest of the respondent, which is to lie in the registry for 72 hours to allow time for the respondent to surrender himself into custody.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – NOTICES OF APPEAL – TIME FOR APPEAL AND EXTENSION THEREOF – where the Attorney-General seeks an extension of time to appeal against the respondent’s sentence – where the notice of appeal was filed one date late – where the respondent contends that the extension if granted would expose him to prejudice – whether there is a good reason to grant the extension / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – DOUBLE JEOPARDY – where the respondent was sentenced to 18 months’ imprisonment for three counts of indecent treatment of a child under 16, under 12, two years’ imprisonment for five counts of indecent treatment of a child under 16 and four years’ imprisonment for one count of rape – where the terms of imprisonment were immediately suspended with an operational period of four years – where the Attorney-General contends that the respondent’s sentence was manifestly inadequate – where the respondent was required to serve an actual term of imprisonment unless there were exceptional circumstances – where the sentencing judge found that such circumstances were made out – whether the sentencing judge’s finding was unreasonable or plainly unjust / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – CROWN’S CONDUCT AT SENTENCE HEARING – where the Attorney-General contends that the circumstances could not reasonably be regarded as exceptional such that the respondent was required to serve a term of actual imprisonment – where the respondent urges that this submission is impermissible in that it is contrary to the Crown’s position at the sentencing hearing – where the respondent alternatively contends that this factor should influence the exercise of the Court’s residual discretion not to disturb the sentence imposed – whether the Court should not resentence the respondent even if the Attorney-General demonstrates that the sentence was affected by material error or was manifestly inadequate / Criminal Code (Qld), s 669A, s 671 / Penalties and Sentences Act 1992 (Qld), s 9(1), s 9(4), s 9(5), s 9(6), s 144 / Youth Justice Act 1992 (Qld), s 140(1) / Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2, applied / Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, applied / Moore (a pseudonym) v The King (2024) 98 ALJR 1119; [2024] HCA 30, applied / R v Adair & Attorney-General of Queensland [1997] QCA 185, applied / R v BCX (2015) 255 A Crim R 456; [2015] QCA 188, applied / R v Ebadi [2025] QCA 248, applied / R v GBD (2018) 275 A Crim R 551; [2018] QCA 340, considered / R v Gordon, ex parte Director of Public Prosecutions (Cth) [2011] 1 Qd R 429; [2009] QCA 209, applied / R v HCL [2023] QCA 68, considered / R v KU, ex parte Attorney-General (No 1) [2011] 1 Qd R 157; [2008] QCA 20, distinguished / R v MBF [2008] QCA 61, considered / R v MCB; Ex parte Attorney-General (Qld) [2014] QCA 151, considered / R v Palmer; Ex parte Attorney-General (Qld) [2019] QCA 133, applied / R v SAH [2004] QCA 329, considered / R v SEV; Ex parte Attorney-General (Qld) [2026] QCA 31, applied / R v TBE [2024] QCA 204, cited / R v Tootell; ex parte A-G (Qld) [2012] QCA 273, applied / R v Tricklebank [1994] 1 Qd R 330; [1993] QCA 268, considered / R v Wilton (1981) 28 SASR 362; (1981) 4 A Crim R 5, applied
COUNSEL: M B Lehane for the appellant / S B Neaves for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Beaudesert Legal for the respondent
BODDICE JA: I agree with Doyle JA.
DOYLE JA: The Attorney-General seeks an extension of time to appeal against what is said to be a manifestly inadequate sentence. The proposed appeal raises an issue of importance to the administration of criminal justice in this State in respect of sexual offences against children (in particular in this case, historical sexual offences). Despite the offences including repeated indecent treatment of a child and one of rape of that child, over a period of some seven years, no term of actual imprisonment was imposed on the offender. The Attorney-General submitted that this is manifestly inadequate, and that it is important that it be corrected, not only for the victim of this offender, but to properly reflect the demands of justice in respect of, and for the deterrence of, such conduct.
The Sentences Imposed
On 16 June 2025, the respondent was convicted, on his own pleas of guilty, of three counts of indecent treatment of a child under 12, five counts of indecent treatment of a child under 16, and one count of rape. The child concerned was his younger biological sister.
On 22 September 2025, the respondent was sentenced to:18 months’ imprisonment (Counts 1, 2 and 3: indecent treatment of a child under 12);Two years’ imprisonment (Counts 4, 5, 6, 8 and 9: indecent treatment of a child under 16); andFour years’ imprisonment (Count 7: rape).
The sentencing judge:ordered that the sentences be served concurrently;also ordered that the whole of the terms of imprisonment be immediately suspended pursuant to s 144 of the Penalties and Sentences Act 1992 (Qld), with an operational period of four years;made an order for compensation in the amount of $5,000 pursuant to s 35 of the Penalties and Sentences Act 1992; andnoted, as is the case, that convictions would be automatically recorded on each count.
Ground of Appeal
Extension of Time
The Attorney-General requires and has applied for an extension of time within which to appeal pursuant to s 671(3) of the Criminal Code.
The notice of Attorney-General’s appeal against sentence was filed on 22 October 2025, being one day outside the prescribed period pursuant to s 671(2) of the Criminal Code.
The Test
This Court has a wide discretion to grant an extension of time. Section 671(3) of the Criminal Code is expressed in terms that the time provided for an appeal “may be extended at any time by the Court.” The parties made written submissions to the effect that on an Attorney-General’s appeal against sentence an extension of time will only be given in exceptional circumstances.1
I prefer to express the test as requiring that there be ‘good reason’ shown for granting the extension, recognising that a potentially relevant consideration is that the effect, if granted, will be to expose a respondent to being sentenced a second time (and potentially more severely) for the offence of which the respondent had been convicted. In R v Gordon; ex parte Director of Public Prosecutions (Cth) [2011] 1 Qd R 429, Keane JA (with whom the other members of the Court agreed) expressed the applicable test as follows (citations omitted; emphasis added):
“[30] It is now well-settled by authority that the judicial discretion to expose an individual to that prejudice will only be exercised for good reason. In R v KU; ex parte Attorney-General (No 1), this Court affirmed that it will exercise its discretion to grant the Attorney-General an extension of time to appeal to expose an individual to this kind of double jeopardy only in exceptional circumstances…
[31] In R v KU; ex parte Attorney-General (No 1), this Court rejected the view that an arguably appealable error would ‘without more, “constitute exceptional circumstances” such as would justify exposing an accused person to the additional jeopardy of a more severe sentence’. In that case, this Court granted an extension of time to allow an appeal by the Attorney-General under s 669A… to proceed because the errors which arguably infected the sentencing process in that case were of ‘so serious a kind that they must be corrected in order to maintain public confidence in the administration of justice’.”
“While this Court’s discretion to grant an extension is at large, it must nevertheless be exercised judicially. The authorities to which I have referred indicate that an individual should be exposed to the prejudice of double jeopardy only for good reason, and this will usually require a satisfactory explanation for the delay, and will usually not be shown merely by an error in the sentencing process.”
Delay and its Explanation
While the delay itself was short, nonetheless there ought to be an adequate explanation given for it.2 On 13 October 2025, the Attorney-General sought advice from the Office of the Director of Public Prosecutions on the prospects of a potential appeal. Why it was not sought sooner is not explained but I do not believe that is significant. A response was received on 15 October 2025. That advice erroneously stated that the filing deadline was 22 October 2025. The respondent urges that no explanation had been given as to why the Attorney-General waited until what she thought was the ‘last available day’ to file, in circumstances where the advice had been received one week prior.
I would afford this consideration very little weight. The Attorney-General had until 21 October 2025 to lodge the notice of appeal. The ‘delay’ to that time is an aspect of the statutory time provided to the Attorney-General to take advice, to decide whether or not to appeal and then to formulate and commence the appeal.3 The reason why the appeal was not filed on time has been explained as due to the erroneous advice given to the Attorney-General by the Office of the Director of Public Prosecutions.4 The notice of appeal was filed only one day late. In my view, an adequate explanation has been given for that delay.
Prejudice
The Attorney-General contends that the delay was not apt to cause prejudice to the respondent.5 The respondent urges that this submission overlooks “the very concern laid out in both Gordon and KU.”6
In Gordon, Keane JA (de Jersey CJ and Wilson J agreeing) stated:
“[28] … If the extension of time sought by the DPP were to be granted, the respondent would be confronted again with the prospect of actual imprisonment. This prospect brings into focus the important consideration that the DPP’s application seeks from the Court an exercise of discretion which will expose the respondent to double jeopardy. In Dinsdale v The Queen, Kirby J, with whom Gaudron and Gummow JJ relevantly agreed, explained why Crown appeals against sentence have been regarded in a different light from an appeal against sentence by a convicted person. His Honour said:
‘For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across “time-honoured concepts” (Peel v The Queen (1971) 125 CLR 447 at 452) of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a “matter of principle” (Griffiths v The Queen (1977) 137 CLR 293 at 310), such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced (Whittaker v The King (1928) 41 CLR 230 at 248, per Isaacs J (diss); cf R v Tait (1979) 46 FLR 386 at 388–390; 24 ALR 473 at 476–477; Malvaso v The Queen (1989) 168 CLR 227 at 234; R v Grein [1989] WAR 178 at 180; Everett v The Queen (1994) 181 CLR 295 at 299).’”
His Honour considered that Kirby J’s observations were applicable to the exercise of the Attorney-General’s right of appeal pursuant to s 669A of the Criminal Code and accordingly, to the exercise of the Court’s discretion under s 671(3).7 But notwithstanding this consideration, Keane JA then stated the applicable test at [35] as I have set out above (which is that good reason be shown for granting the extension of time).
Prejudice to the respondent is a matter to take into account in assessing whether good reason has been shown for extending time. However, this should not be overstated. The prejudice from the possibility of resentencing is a prejudice to which the respondent is exposed by reason of the statutory right of appeal conferred on the Attorney-General under s 669A of the Criminal Code. In this State that right is not qualified by a need to first obtain leave. For the duration of the one month afforded to the Attorney-General the respondent is at least notionally exposed to the risk of being resentenced. Whether that in fact occurs turns on other considerations (discussed below). The prejudice which derives from the extension, if granted, of one day in one sense is significant; but for that extension the risk of resentencing evaporates. However, the discretion exists to grant that extension and it is a discretion expressed by Parliament in the same statute as conferred the right of appeal. It can be said of every extension of time under consideration that but for it being granted the appeal will fail.
The additional exposure of the respondent to the risk of resentencing, while a material matter, in my view is not an overwhelming one if the appeal otherwise is one which enjoys good prospects and, in particular as in this case, where the issues involved are of importance to the administration of criminal justice in this State.
Merits and Significance
Grant of Extension
Appeal
The Penalties and Sentences Act 1992
“(4) Also, in sentencing an offender for any offence of a sexual nature committed in relation to a child under 16 years or a child exploitation material offence—
the court must have regard to the sentencing practices, principles and guidelines applicable when the sentence is imposed rather than when the offence was committed; and
the principles mentioned in subsection (2)(a) do not apply; and
the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.
For subsection (4)(c), in deciding whether there are exceptional circumstances, a court may have regard to the closeness in age between the offender and the child.
In sentencing an offender to whom subsection (4) applies, the court must have regard primarily to—
the effect of the offence on the child; and
the age of the child; and
the nature of the offence, including, for example, any physical harm or the threat of physical harm to the child or another; and
the need to protect the child, or other children, from the risk of the offender reoffending; and
any relationship between the offender and the child; and
the need to deter similar behaviour by other offenders to protect children; and
the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and
the offender’s antecedents, age and character; and
any remorse or lack of remorse of the offender; and
any medical, psychiatric, prison or other relevant report relating to the offender; and
anything else about the safety of children under 16 the sentencing court considers relevant.”
While some subsections of s 9, and indeed s 9(4)(a), identify matters to which regard must be had when sentencing an offender, s 9(4)(c) mandates that in sentencing (where that subsection applies) the offender must serve an actual term of imprisonment, unless there are “exceptional circumstances”. The expression “actual term of imprisonment” is defined to mean “a term of imprisonment served wholly or partly in a corrective services facility.”
The respondent was sentenced as an adult on all counts, for offences of a sexual nature committed in relation to a child under 16 years.9 Accordingly, he was required to serve an actual term of imprisonment, unless there are exceptional circumstances.
In R v Ebadi [2025] QCA 248 at [9], this Court affirmed that exceptional circumstances are those “which form an exception, which are out of the ordinary course, or unusual, or special, or uncommon but which cannot be ones that are regularly, or routinely, or normally encountered.” Moreover, no particular feature need be exceptional, and a collection of features which are individually usual can in combination be said to be, for these purposes, exceptional: R v BCX [2015] QCA 188 at [29]-[30]; R v Tootell; ex parte A-G (Qld) [2012] QCA 273 at [24]-[25].
Finding of Exceptional Circumstances
“The prosecution have submitted that, even in combination, I should not reach the conclusion that there are exceptional circumstances, I should require you to serve time in prison. Even if I did not reach that conclusion about exceptional circumstances, there is no question there is significant mitigation. The standard discount in Queensland for a plea of guilty is a discount of a-third. That is not fixed in stone, but that is largely the way the courts approach it. I would give you a greater discount than that, having regard to all the matters in your favour.
So really, it is a very fine line, but I have reached the conclusion that there are just sufficient circumstances in combination… that I can reach the conclusion there are exceptional circumstances that I will not order you to serve actual imprisonment today...”
Standard of Review
The Sentencing Judge’s Approach
The sentencing judge gave consideration to all relevant matters, both in mitigation and aggravation, to arrive at the sentence. No challenge is made to his Honour’s general approach.
I shall return to consider other decisions which are said to offer some guidance to the type of sentence which is appropriate, and more significantly that the current one is manifestly inadequate. But at least three things should be accepted.
First, that what is required is to carefully consider all factors (which inevitably have different significance or weight and which point in opposite directions) which are relevant to these offences.
Second, that consideration is to be conducted against the background that Parliament by s 9(4)(c) of the Penalties and Sentences Act 1992, has mandated that a term of actual imprisonment is to be served in the usual case (the non-exceptional one).
Third, to depart from that, the circumstances must be exceptional. For this to be satisfied in my view the features pointed to must be such as to make it appropriate that no term of actual imprisonment be served. The circumstances in order to be ‘exceptional’ must be such as to justify departure from the position otherwise mandated by s 9(4)(c). So, to take an extreme example, a circumstance may well be exceptional in a sense, even if it suggests that a very long term of actual imprisonment is appropriate. That is plainly not the nature of the ‘exceptional circumstances’ to which s 9(4)(c) refers. To take an example closer to this case, the offender’s personal history may well include features which can rightly be said to be unusual. But what those features, in combination with all other relevant considerations, including the severity of the offending, must amount to are circumstances such that a sentence without a term of actual imprisonment is justified as exceptional.
This is consistent with what was said in R v BCX [2015] QCA 188,11 namely (citations omitted):
“[29] As already observed, there is no statutory definition of what may amount to ‘exceptional circumstances’ for the purposes of s 9(4) PSA. In a limited number of cases, the circumstances of the offending may be at such a low level as to lead to such a finding. More often than not, though, it will only be when the factors personal to the offender are also taken into account that the overall circumstances are capable of being seen as sufficiently exceptional to exempt the offender from the usual operation of that provision. What is required is a careful consideration of all of the circumstances in order to determine whether, alone or in aggregation, they constitute exceptional circumstances so as to warrant the conclusion that the offender should be spared imprisonment. But, as this Court affirmed in Tootell, the provision must be read in its statutory context and with its obvious legislative intent in mind, that is, to ‘make it the usual case that those who commit sexual offences against children will serve actual imprisonment’.
…
[34] Thirdly, when sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 years, the sentencing judge is required to give primacy to the considerations set forth in s 9(6) as well as, in this case, s 9(7). Any assessment whether exceptional circumstances exist in a particular case will therefore need to be undertaken with those considerations at the forefront of the sentencing judge’s mind. In this regard, it can be seen that they not only include factors going to an assessment of the objective seriousness of the offence, the effect of that offence on the victim and the need for personal and general protection and deterrence, but also such considerations as the offender’s prospects of rehabilitation (including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community), the offender’s antecedents, age and character, whether there is remorse and any medical, psychiatric, prison or other relevant report relating to the offender.”
The Relevant Factors
The Offending12
Counts 1 – 3 Offending in 1998
Counts 1 to 3 involve the respondent unlawfully permitting himself to indecently treat the complainant. These offences occurred on dates unknown in 1998 when the complainant was 7 to 8 years old. The respondent was 15 to 16 years old.
In respect of Count 1, the respondent lured the complainant into the bathroom on the false premise that he required assistance washing his back. He instructed the complained to get undressed. He then procured her to suck his penis until he ejaculated.
Counts 2 and 3 also arise out of the respondent luring the complainant into the bathroom. On this occasion, the complainant resisted at first. The respondent told the complainant that he would tell their mother she had been naughty if she did not come and help him. The respondent then procured the complainant to suck his penis. Then the respondent simulated intercourse by rubbing his penis between the complainant’s thighs and against her vulva until he ejaculated. The respondent encouraged the complainant to touch herself in a sexual manner.
Count 4 – Offending in 2002
Count 4 occurred on a date unknown in 2002. The complainant was 11 to 12 years old. The respondent was 19 to 20 years old. The offending took place in the complainant’s bedroom while she was sleeping. The respondent attempted to wake her. She however pretended to be asleep. The respondent then pulled down her pyjama pants and underwear. He again simulated intercourse by rubbing his penis back and forth between the complainant’s thighs.
At some point after this the respondent moved out of the home (Location 1).
Counts 5 to 8 – Offending in 2004
The respondent then moved back home where the complainant was living (Location 2).
Counts 5 to 8 occurred on a date unknown in 2004 at which point the complainant was 13 to 14 years old and the respondent was 21 turning 22 years old.
In respect of Count 5, the respondent, under the guise of tickling, rubbed the complainant’s vagina on the outside of her clothing. The complainant told the respondent to stop. The respondent acceded to this and apologised. He asked the complainant not to disclose what happened to their mother and the stepfather. The respondent promised it would not happen again. This turned out not to be true.
Count 6 involved the respondent rubbing the complainant’s genitals on the outside of her clothing. The complainant cried. She told the respondent that he should not be doing this. The respondent desisted and apologised many times. The complainant went to bed.
Count 7 was of rape. The complainant and the respondent were watching a movie with the complainant’s sister in the games room. The respondent moved his hand down the complainant’s thigh. The complainant made repeated efforts to roll onto her left side to prevent the respondent’s hand getting beneath her. The respondent then placed his hand down her pants and penetrated the complainant’s vagina with his finger.
Count 8 occurred on the same occasion. The complainant’s sister had left the room at which point, the respondent flipped the complainant onto her back and licked her nipple. During this time, the respondent had pinned the complainant’s hands above her head.
Count 9 – Offending in 2005
Post Offence Conduct and Arrest
The complainant told various people of the offending some years afterwards, but relevantly exchanged text messages with the respondent in March 2021. She had by this time made an online report to police. The statement of facts reveals that in one of the text messages to her the respondent expressed his shame and regret.
Initially he attended, with his barrister, a pre-arranged appointment with police but he refused to participate in a record of interview. Later when arrested he was interviewed by police on 15 May 2024 and admitted to some sexual touching of the complainant. Significantly what he described was sexual touching when he was 12 to 13 years of age only. This predated the charged counts. Accordingly, as late as May 2024 he did not admit to the sexual abuse to which he had over many years subjected his younger sister, but rather suggested it had occurred only when he was quite young.
Impact on the Complainant and Others
Each of the complainant and two of her sisters gave impact statements and read them out in court.
The complainant referred to many things and I will mention only a few, namely:Her physical pain during and after the offending.Her palpable emotional and psychological suffering. As a child she was scared if left alone with the respondent, had withdrawn from her siblings, and learned to hate herself. As an adult she suffers daily flashbacks, in the shower, kneeling down to do something and so on. She cries most days, has difficulty sleeping; she hates herself for keeping the respondent’s secrets.She stated that “I don’t know if I’ll ever truly enjoy sex. I live with detachment to my body and mind.”13She believes that she has never achieved her potential or indeed to know herself without trauma. Her education and financial potential were not achieved.
Her sisters in their statements referred to the impact not only on the complainant but on themselves.
One, the twin of the complainant, said:The complainant told her of her abuse when she was 14 but she promised not to tell anyone.The sister stated:
“I still feel so much guilt that I was spared. That she had to live with all that pain. That our childhoods, though side by side, were so very different.”
She added:
“The emotional toll of this prolonged trauma has been overwhelming. I have spent years feeling consumed by sadness, worry, and guilt.
Knowing my twin has suffered, living in fear, confused and seeing how it has shaped her life has been heartbreaking. I have had panic attacks to the point where I felt I couldn’t draw a breath, an icy cold shower the only thing to bring me back to the present.
One of the most difficult emotions I have carried is guilt. Even though I was just a child, a part of me has always felt I should have done more, pushed harder, broken the silence.
…
This guilt has changed how I see myself. It feels as though something in me is broken. It reaches into my relationships and everyday life, shaping how I trust, how I connect, and how I believe others see me.
…
I have spent thousands of dollars on therapy in an effort to process the emotional burden I have carried. For most of the last five years, I have attended therapy fortnightly, with some breaks when it became too overwhelming to continue.
That money, time, and energy could have been spent building my future, my career, or my family. Instead, so much of my life has gone into surviving what happened and trying to rebuild from it.
…
These crimes do not just affect the person harmed directly, they reach everyone who loves them.
The silence, isolation, and self-blame have become a second layer of trauma in both our lives.”
“When [the complainant] disclosed [the respondent’s] actions to me in April 2021, I didn’t feel shock, I felt terrible clarity. That moment is burned into memory as traumatic flashes. I can see [the complainant] sitting opposite me, in a slow stillness that expanded as the world in which she’d been safe collapsed completely. She reached forward to hug me, glancing at her baby, whispering, ‘I am scared of him.’ I remember looking at [name removed] feeling devastated that [the complainant] couldn’t simply enjoy uncomplicated joy in being with her little boy.
Since then, my health and functioning have deteriorated in ways that are fresh, new and surprising to me. I’ve experienced:
A loss of tolerance for physical affection from anyone but my sisters. Which is hard, as we don’t live in the same state
Anxiety that has become so intense it invades my sleep. I take nighttime blood pressure medication to prevent my body from responding to rest as threat
Emotional and cognitive disorganisation that’s made it hard to do well professionally and connect with my colleagues in ways that once felt natural.
Relational strain in my family, particularly with our mother and paternal grandmother, who turn to me in pain and confusion as they try to process what [the respondent] did – a burden I’m not equipped to carry.
…
What [the respondent] did – what he has pleaded guilty to – has caused damage I’m still trying to make sense of. It left me with an agonising sense of grief for not being able to see what was hidden. Coming to understand what my sister’s world was like and how she continues to suffer every day has been unrelentingly painful, destabilising and life-altering. Despite my best efforts, I don’t know how I’m to recover.”
Mitigating Factors
The respondent was 43 when sentenced. He has only minor and no material criminal history.
Between August 2021 and April 2022 the respondent attended eleven treatment sessions with Ms Geddes, a Forensic and Health Psychologist. This initial engagement, she reports, was prompted by his arrest. The respondent reengaged with her in 2025 and her report was provided to the sentencing judge. This report was based in part of her being told that the respondent was before the court with respect to nine counts including one of rape, her having been given the respondent’s statement to the police in 2024 and the statement of facts which were also relied on at the sentencing.
Ms Geddes reports that the respondent grew up with separated parents, his mother having re-partnered with a 15 year child (a neighbour). The respondent reported to Ms Geddes his having been subjected to sexual abuse as a child, from his cousin, who also encouraged him to sexually abuse one of his sisters.14 These features are relied on as suggesting he lived in a household or family environment which normalised indecent sexual contact with children and, as Ms Geddes put it, distorted his perception of what was acceptable. This and other things contributed to his low self-esteem and a deficit in healthy peer relationships. The offending, Ms Geddes opined, “was precipitated by these social difficulties and low self-esteem and coincided with the onset of puberty.”
It can be noted that:As far as was known, the respondent did not seek out any form of treatment prior to his arrest. His rehabilitation by obtaining treatment is, of course, a material matter, but so too is the circumstance that he did not independently of arrest seemingly have an appreciation of the gravity of his conduct and his need for treatment.While Ms Geddes identifies a feature precipitating his offending which coincided with the onset of puberty, his offending persisted long after that. It is not said that his “distorted perspective of what was acceptable” persisted for that period.
Dr Morgan is also a Forensic Psychologist. He saw the respondent on 23 July 2025 and spoke to him on the phone on 19 August 2025 providing a report on 20 August 2025. It is unnecessary to recite its contents. It concludes with something of a summary of Dr Morgan’s views as follows:
“The seriousness of [the respondent’s] offending is such that he may be considered for a span of custody, a concern that he is aware of and is fearful of. However, solely from a psychological and rehabilitative perspective, there would not seem any specific benefits of him accessing required offence-specific treatment within the context of imprisonment – indeed with markedly fewer opportunities for him to continue with individual treatment (whilst he may benefit most from a group-based program or programs via Queensland Corrective Services, these are notably available to him in the community as well as in custody). This would allow him to continue to work and to thereby support himself and his family. I further note the relevance of his low mood and anxiety, also history of psychotic decomposition, thus that he may struggle in and conceivably be vulnerable within a custodial setting – in particular noting his prior history of suicidal ideation. Thus, viewed exclusively via a psychological treatment perspective, there would seem greatest merit in him accessing a Court disposition that may maximise the options for him to access community-based treatment.”
The offending occurred at its most recent some 20 years prior to the sentencing. In that period he had not offended in any relevant manner and his abuse of his sister did not reoccur. This is relied on as an indication that the respondent has been rehabilitated. The weight of this as a matter in mitigation is significantly tempered by the circumstance that those years passed without his having been confronted by his offending or indeed the respondent himself acknowledging and seeking counselling for his conduct.
In those intervening years he has married and has two children with his wife, and an adolescent daughter from a prior relationship. The family lives on an acreage property which is mortgaged.
He and his wife have established a business which now employs 20 men. His wife is the director and owner but the respondent manages the business. He is described as a major asset of the business and it may suffer from his incarceration if that was to occur.15
His wife provided a reference. She says she observed a “big change in his mental health” since he saw Ms Geddes in 2021-2022. She also says of him:
“[The respondent] is a wonderful husband and an amazing father. He supports, listens and protects his children. It makes me very proud to see the man that I married have so much love for the family that we created together. [The respondent] is our protector, he is our safe place.”
“It has taken me some weeks to write this as I am disappointed with my actions. It makes me sick to think the pain I have caused to my sister [the complainant]. I am deeply remorseful and ashamed for what I had done. I do acknowledge the impact that this has had on [the complainant] and I will be forever sorry for that. As I have said to [the complainant] in text message ‘If I could go back in time and tell my younger self, this is wrong and explain what I was doing was wrong, I would’ But I can’t.
[The complainant] has always been a big part in my adult life, being the Godparent to my children and we always have spent time together as a family being celebrations, children’s birthdays, family holidays etc. [The complainant] has had a huge impact on my daughter’s (sic) lives where they both looked up to her as an Aunty.”
Summary
There are features of this present appeal which make this severe and troubling offending.There were multiple occasions when the offending conduct occurred and over 7 years.Whatever might be thought of the immaturity of the respondent when he commenced his offending, he returned to it in 2002 through to 2005 when he was 19 to 23.He manipulated and threatened his younger sister and persisted despite knowing she was upset (crying) and despite assurances from him that he would not do it again.His behaviour speaks of a serious breach of the trust that his young sister should have been able to expect of him.He employed force to hold her down.16She was a young child when he started and still a young girl throughout his later conduct. His conduct included as a 21 or 22 year old digitally raping her (then 13 to 14).He sought to minimise or conceal his conduct when interviewed by the police and completely ignored his conduct as an adult.
The factors in mitigation are material, but generally not atypical having regard to cases involving sexual offences against children. In many such cases the matters pointed to include: the guilty plea; attempts to establish the accused is undergoing treatment; delay, sometimes decades, between the offending and the sentencing; during that time, the establishment of a new family and business or other interests; also during that time, often a period of no offending pointed to as evidence of rehabilitation; the dysfunctional childhood of the offender, including being subjected to sexual abuse himself or herself. The particular circumstances of the behaviour of the respondent’s cousin and his mother in themselves are unusual but their relevance is said to be that they instilled in the respondent a distorted perception of what conduct is acceptable. That would be commonplace for offenders in counts of sexual offending against children.
None of this stands out as leading to a departure from the normal position mandated by s 9(4)(c) of the Penalties and Sentences Act 1992.
Other Cases as a Guide
“… in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.”
The Attorney-General does not take issue with the head term of 4 years’ imprisonment for count 7 or with any other aspect of the sentences imposed. The sole feature which in the Attorney-General’s submission made the sentence manifestly inadequate is that the terms of imprisonment were wholly suspended immediately such that no period of actual imprisonment was imposed.
No one referred this Court to adult offending broadly of the kind the subject of this offending where no term of imprisonment was imposed.
We were referred to R v HCL [2023] QCA 68. It did not, however, involve any offending as an adult. In that case the defendant pleaded guilty to 9 counts of sexual offending (4 of rape and 5 of indecent treatment) committed when the offender was a teenager with the victim his younger sister. He was sentenced to concurrent sentences for the rapes of 12 months’ imprisonment to be suspended after five months for an operational period of two years. There was a specific error made in the sentencing process and accordingly that sentence was set aside and the offender resentenced. In doing so this Court noted that the applicant had already served two months, and there was no reason why he ought to be sentenced more harshly than as a child (he being a child when the offences occurred): [47]-[49]. The sentence imposed was two years’ probation.
The other decisions to which this Court was referred concerned offending by an adult and are more relevant given the offending the subject of counts 4 to 9 and especially count 7. They include:In R v SAH [2004] QCA 329, this Court imposed a sentence on appeal of three years’ imprisonment suspended after 12 months with an operational period of three years. The applicant was a 19 year old and he digitally raped a three year old boy (who he was caring for while his mother was in hospital).In R v MBF [2008] QCA 61, the complainant was the 13 year old niece of the applicant who was at the time 28 years of age. He digitally raped her and touched her breasts despite her asking him to stop. He was sentenced to three years’ imprisonment for the rape and one year for the indecent treatment count both served concurrently with the former term to be suspended after 12 months. He failed in his application for leave to appeal the sentence.In R v GBD (2018) 275 A Crim R 551, the applicant, who was 17, on one occasion digitally raped his four year old female cousin. This Court resentenced him to three months’ imprisonment to be released on probation for a period of two years.In R v MCB; Ex parte Attorney-General (Qld) [2014] QCA 151, a 20 year old was convicted of one count of rape and seven of indecent treatment of a vulnerable eight year old boy. His cooperation was said to be very high and without it he could only have been charged with one or two offences. He was sentenced to three years’ imprisonment on the rape count to be suspended after nine months. The Attorney-General appealed that sentence on the basis it was manifestly inadequate. As to that, Atkinson J (with whom the President and Muir JA agreed) said at [65]:
“There may be room to doubt whether the sentence should have been suspended after nine months rather than 12 months as advocated by the prosecutor at first instance; but that difference would not be sufficient to describe the sentence imposed as manifestly inadequate…”
Each of these decisions in turn discussed other arguably comparable decisions. There is little to be gained from discussion of further cases. In all of them a term of actual imprisonment was imposed for adult offending.
The sentencing judge described as “a very fine line” whether or not to impose a term of actual imprisonment. I agree with the submission made by the Attorney-General on this appeal, that there was no fine line. The conclusion expressed by the sentencing judge reflects such a departure (that is such a manifestly inadequate sentence) that it can be said to fall within the ambit of appellate intervention in accordance with House v The King. It reveals that the sentencing judge must have “acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust.”17
Persistent sexual indecent treatment, extending to rape, over 7 years including significant offending as an adult, of a child almost 8 years junior to the offender, someone whom she otherwise ought to have been entitled to trust, is such as to require in my view this Court’s emphatic denunciation. While, as mentioned, there are many mitigating factors of varying strength in the respondent’s favour, they are not such as meaning it is proper not to impose a term of actual imprisonment.
Quite apart from the usual or default mandate Parliament has provided in s 9(4)(c) of the Penalties and Sentences Act 1992, the purposes of sentencing stated in s 9(1) include a number of stated purposes which also support the imposition in this case of a term of actual imprisonment. They include:
“(a) to punish the offender to an extent or in a way that is just in all the circumstances; or
…
(ca) to recognise the harm done by the offender to a victim of the offence; or
to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved; or
…
a combination of 2 or more of the purposes mentioned in paragraphs (a) to (e).”
Additional Merits Issue and The Residual Discretion
The respondent had submitted that there is an additional matter which affords a basis for refusing the Attorney-General’s appeal.
The Attorney-General in substance contends on appeal that the relevant circumstances could not reasonably be regarded as exceptional such that a term of actual imprisonment ought to have been imposed.18 The respondent submits that this submission is contrary to the Crown’s position at the sentencing hearing and thus impermissible.19 Alternatively it was argued that it is a factor which should influence the exercise of the residual discretion of this Court not to disturb the sentence imposed.
At the sentencing hearing, the prosecutor made a submission accepting that “depending on the weight that the court gives the factors in mitigation, balanced against the aggravating circumstances and the nature of the offending, it would be open to find exceptional circumstances.”20 A similar if less emphatic submission had also been made in writing by the Crown.21
The submission, in each case, is expressed in a conditional form: that it being open to make such a finding was dependent upon the weighting and balancing to be undertaken by the sentencing judge. It must also be understood as meaning that conditionally upon the same weighting and balancing, the judge would find there were no exceptional circumstances.
The Crown however, both in writing and orally, went on to articulate its submission as to the outcome of the weighting and balancing. The prosecutor submitted that “the serious nature of this conduct warrants… a sentence that involves a component of actual custody, to meet the objectives of general deterrence and denunciation.”22 What was urged was a sentence of “four [to] four and a-half years’ imprisonment” suspended “at a point up to the 1/3 mark, to reflect the mitigating features.”23
After the submissions from the prosecutor, the sentencing judge clearly understood that he could only accede to the submission for the respondent if “there are exceptional circumstances.”24 Counsel then appearing for the respondent addressed the matters which he submitted should lead to the conclusion there were exceptional circumstances. In the course of those submissions, his Honour identified that the real argument between the parties was whether the respondent should serve some time in custody which, his Honour noted, depended on there being exceptional circumstances. In that context I do not put any significance on the fact that the prosecutor did not address the sentencing judge further in reply.
“It is necessary to consider whether the prosecution should be allowed to raise on the appeal the contention that the sentence ought not to have been suspended when contention was not put in the Court below. The consequences of allowing the prosecution to do so are serious. The respondent has faced the prospect of deprivation of his liberty by way of imprisonment and has been spared, subject to observance of the conditions of the bond. If the prosecution is allowed to raise the contention he must again face the prospect of imprisonment. This is what the Federal Court meant in R. v. Tait and Bartley by ‘double jeopardy’. In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course. I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.”
In that case, the prosecutor was given little notice the sentencing judge was considering a suspended sentence and accordingly the Full Court had no difficulty placing little significance on the Crown not having taken a contrary position below. In R v KU, supra, the observations of the Court (at [38]) as to the need to justify exposing an accused to the additional jeopardy of a more severe sentence was made by reference to the situation where what was sought on appeal was more than that previously sought by the Crown. That is not the situation in the current case, and as R v Wilton shows, even that feature is no bar to the appeal being allowed.
In R v Tricklebank [1994] 1 Qd R 330, this Court considered an application for leave to appeal against sentence by the defendant and a cross appeal by the Attorney-General. Leave was refused to the applicant for reasons it is not necessary to consider. As to the Attorney-General’s appeal (which sought the imposition of a more significant sentence), it was rejected on its merits: see McPherson JA at 337 (lines 41-43); Macrossan CJ and Demack J agreeing in relation to the Attorney-General’s appeal. His Honour however went on to discuss the contention that the plea of guilty and the sentence imposed were influenced by the attitude of the prosecutor agreeing to adopt a neutral position on sentence: not asking for a custodial sentence but at the same time not supporting the proposed defence submission that a non-custodial sentence should be imposed. As to that McPherson JA, at 338, said (emphasis added):
“…Of course, nothing that counsel does can bind the trial judge, who in sentencing has an independent duty to perform and discretion to exercise. See Malvaso v. The Queen (1989) 168 C.L.R. 227, 233. That was a case in which Mason C.J., Brennan and Gaudron JJ. considered that an agreement that prosecuting counsel would ‘stand mute’ while a suspended sentence was sought was relevant to the question whether leave should be granted to the Attorney-General to appeal against sentence on the grounds of its leniency.
The right of the Attorney-General in Queensland to appeal against sentence does not, as in some other States, depend on a favourable exercise of the Court’s discretion: cf. Blackett (1990) 50 A.Crim.R. 228, 231. However, it remains true that the prosecution is under a duty to assist the sentencing judge to avoid appealable errors; and, for the reasons that are identified in Tait (1979) 46 F.L.R. 386, 388–390, this Court may properly refuse to intervene on behalf of the Attorney-General to correct what is said to be an error in sentencing if it has been caused or contributed to by a failure of the prosecution to do what was needed to avert that error in the court below. The sentencing process cannot be expected to operate satisfactorily, in terms of either justice or efficiency, if arguments in support of adopting a particular sentencing option are not advanced at the hearing, but deferred until appeal.”
None of these authorities suggests, nor do I conclude, that the Attorney-General should not be allowed on this appeal to urge for the non-existence of exceptional circumstances or urge that the sentence imposed was manifestly inadequate because of the absence of any actual term of imprisonment. Similarly, there is no sense in which the prosecutor caused or contributed to the sentencing judge falling into the error of not imposing a term of actual imprisonment. The prosecutor below urged for a term of actual imprisonment.
On appeals by the Attorney-General the courts have recognised what has been called a residual discretion not to resentence even if it is demonstrated that the sentence imposed was affected by material error or manifestly inadequate: See Green v The Queen (2011) 244 CLR 462 at [43]. The Attorney-General must not only establish that the sentence imposed was inconsistent with principle, but also that it is appropriate to exercise the residual discretion: R v SEV; Ex parte Attorney-General (Qld) [2026] QCA 31 at [45]; R v Palmer; Ex parte Attorney-General (Qld) [2019] QCA 133 at [42].
Factors which might be relevant to the question whether or not to allow the appeal (despite is merits otherwise) have been said to include: that the Crown sought a lower sentence below; delay in the hearing and determination of the appeal; the effect of resentencing on progress towards the respondent’s rehabilitation; and whether the respondent has been released from custody and made life decisions on the basis that the sentencing had concluded: see Green v The Queen, supra at [43]; R v Palmer, supra at [30]; R v Kane; Ex parte Attorney-General (Qld) [2022] QCA 242 at [18]; Munda v Western Australia (2013) 249 CLR 600 at [72].
In my view there is no proper reason not to allow the appeal and resentence this respondent.This is not a case where the prosecutor did not seek a period of actual imprisonment at the sentencing.The appeal was commenced only a day late and the Attorney-General’s office sought an expedited hearing of the appeal. It was set down at a time which, this Court was informed, was to suit those representing the respondent. That is entirely understandable but this is not a case of delay for a period during which the respondent might be said to have altered his affairs believing the sentence process was behind him.There is no evidence of the respondent’s rehabilitation continuing at any time after the six sessions Ms Geddes referred to as having occurred in 2025.25This Court (and more so, lower courts) are familiar with the scourge of sexual offending against children. It would represent a rueful signal to send to others that, in what are unfortunately typical circumstances for this kind of offending, the offender might have his or her sentence suspended without serving any actual term of imprisonment.The administration of criminal justice in this State requires that this Court correct the precedent which the sentencing decision below represents and also provide guidance, through the medium of this appeal to sentencing judges for the future.
The Appropriate Resentence
In the circumstances, the appeal should be allowed and this Court should resentence the respondent.
The Attorney-General did not seek to challenge the sentence of four years for count 7 or indeed any other head sentence for the other counts. Nor did the respondent on appeal make submissions that the head sentences were not appropriate.26 In my view each of them, and in particular the head term of four years, was appropriate.
Given the guilty plea and the other features to which reference has already been made it would clearly be appropriate to provide for the suspension at some earlier time of the actual imprisonment to be served. The Attorney-General has submitted that should be after 12 months. Some support for that approach is given by the sentences in R v SAH, R v MBF and the dicta in R v MCB, supra.
The sentencing judge was inclined, in light of the mitigating features, to afford the respondent something more than the ‘standard’ discount, as he described it. I would accept that such an outcome would be within the permissible exercise of the sentencing judge’s discretion.
Accordingly, I would accept the Attorney-General’s submission that the appropriate sentence orders ought provide for a period of actual imprisonment such that the orders are:That a sentence of four years’ imprisonment be imposed in respect of count 7.That a sentence of two years’ imprisonment be imposed in respect of each of counts 4, 5, 6, 8 and 9.That a sentence of 18 months’ imprisonment be imposed in respect of each of counts 1, 2 and 3.That all sentences be served concurrently.That all sentences be suspended after 12 months’ imprisonment with an operational period of four years.
A warrant should issue for the arrest of the respondent, but it is to lie in the registry for 72 hours to allow time for the respondent to surrender himself to the authorities.
Conclusion
For these reasons, in my view, the orders of the Court should be:The extension of time to commence the appeal is granted;The appeal is allowed and the sentences below set aside, other than for the order made that compensation of $5,000 be paid to the complainant within one month;The respondent be sentenced as follows:On count 7, to four years’ imprisonment.On each of counts 4, 5, 6, 8 and 9, to two years’ imprisonment.On each of counts 1, 2 and 3 to 18 months’ imprisonment.That all sentences be served concurrently.That all sentences be suspended after 12 months’ imprisonment with an operational period of four years.A warrant issue for the arrest of the respondent, which is to lie in the registry for 72 hours to allow time for the respondent to surrender himself into custody.
MUIR J: I agree with the reasons for judgment of Doyle JA and with the orders proposed by his Honour.
Attorney-General’s Outline of Submissions at [6]; Respondent’s Outline of Submissions at [6a]. ↩
R v Adair & Attorney-General of Queensland [1997] QCA 185. ↩
Section 671(2) of the Criminal Code. ↩
Attorney-General’s Outline of Argument at [5]. ↩
Attorney-General’s Outline of Argument at [8] citing R v KU, ex parte Attorney-General (No 1) [2011] 1 Qd R 157 at [57]. ↩
Respondent’s Outline of Argument at [7b]. ↩
R v Gordon; ex parte Director of Public Prosecutions (Cth) [2011] 1 Qd R 429 at [29]. ↩
Attorney-General’s Outline of Argument at [9]. ↩
Youth Justice Act 1992 (Qld), s 140(1). ↩
See R v BCX [2015] QCA 188 at [32]; cf Moore (a pseudonym) v The King (2024) 98 ALJR 1119; R v SET [2025] QCA 332, per Bond JA at [17]-[19] (contrary to the President at [8] and Crowley J at [80]). ↩
The decision in that case predated the High Court’s decisions in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442, and (2024) 98 ALJR 1119 and some of the remarks of the Court which bear upon the standard of review may need to be reconsidered in light of those later decisions.
R
GBV; Ex parte Attorney-General
(2014) 253 CLR 58
(2011) 244 CLR 462
(2024) 98 ALJR 1119
(1981) 28 SASR 362
(1971) 125 CLR 447
(1977) 137 CLR 293
(1928) 41 CLR 230
(1979) 46 FLR 386
(1989) 168 CLR 227
(1994) 181 CLR 295
(1936) 55 CLR 499
(2013) 249 CLR 600
(2023) 280 CLR 442
Extension of time granted. Appeal allowed. The original sentences were set aside except for the order requiring $5,000 compensation to be paid within one month. The respondent was sentenced to four years on count 7, two years on counts 4, 5, 6, 8 and 9, and 18 months on counts 1, 2 and 3, all concurrent and suspended after 12 months' imprisonment for an operational period of four years. A warrant was to issue and remain in the registry for 72 hours to allow surrender into custody.
The respondent referred to R v Wilton (1981) 28 SASR 362. In that case an accused pleaded guilty to housebreaking and larceny and was sentenced to 12 months in prison suspended for three years. The sentencing judge was influenced to suspend the sentence having regard to the circumstance that two other persons with whom the accused had committed the offences had their sentences suspended. That was a course not opposed by the Crown at the sentencing hearing. The Crown then appealed the sentence and was successful. However, in the course of the judgment, King CJ (Mitchell and Williams JJ agreeing) said commencing at 367 (citations omitted):
The facts are set out in a statement of facts before the sentencing judge. ↩
T1-7 lines 48 to 49. ↩
A letter by the respondent which was provided to the sentencing judge identifies that he was 6 to 10 years old at the time. ↩
The letter by the respondent which was provided to the sentencing judge identifies that he had asked a leading hand to manage the business in his absence but that it was a big job and the nominated person was worried he may not cope. ↩
Statement of Facts at [22]. ↩
Moore (a pseudonym) v The King, supra at [14]. ↩
Attorney-General’s Outline of Argument at [42]. ↩
Respondent’s Outline of Argument at [8]-[12] applying R v Wilton (1981) 28 SASR 362. ↩
T1-16 lines 23 to 25. ↩
Crown’s written submissions on sentencing at [29]. ↩
T1-16 lines 25 to 28; see also Crown’s written submissions on sentencing at [29]. ↩
T1-17 lines 37 to 40; see also Crown’s written submissions on sentencing at [30]. ↩
T1-21 line 49 to T1-22 line 1. ↩
Her report of 14 August 2025 at page 1. ↩
The respondent’s submissions below suggested a head sentence on count 7 of “around 3 to 3.5 years” with lesser concurrent terms for the other counts: written submission on sentence at [27]; noting at [30] that the court could rightly impose a greater head sentence. ↩