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[2025] QCA 85
respondent. Appeal dismissed. Leave was given to adduce the affidavit of Mr Prasad; otherwise the applications to adduce further evidence were dismissed ([50]).
The Court of Appeal dismissed the Attorney-General’s appeal against McDonald’s sentences. It held that kidnapping sentences were not proper comparisons because the charges McDonald pleaded guilty to did not require the prosecution to prove that he acted with the purpose of facilitating another offence. The sentencing judge could not sentence on that uncharged basis. The Crown therefore failed to show that the sentences were so far outside the permissible range as to be manifestly inadequate. The Court did not need to decide whether it should intervene despite error.
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2,282 words · generated 07/10/2026
The Queensland Court of Appeal considered an Attorney-General’s appeal against sentences imposed on Brock Andrew McDonald. Bond and Brown JJA and Kelly J dismissed the appeal on 30 May 2025. The case concerned the relationship between the offences actually charged and the facts or intentions a sentencing judge may take into account.
1 cited instrument linked from this judgment.
At about 2.50 am on 21 October 2023, an 18-year-old woman was walking home when McDonald, then 43 and unknown to her, approached from behind. He put a rope around her neck, tightened it, dragged her from the pathway and pulled her into his car ([8]). He placed her face down on the back seat and knelt over her. At some point he removed the rope. The complainant told him to let her go and asked where her phone was ([9]). She eventually escaped. The judgment records no evidence that McDonald further restricted her attempt to get out of the car. She hid in a nearby bush and called a friend ([10]). Her injuries included a superficial neck injury and abrasions to her thigh and knee ([11]).
The original indictment alleged disabling to commit an indictable offence, alternatively assault occasioning bodily harm, and deprivation of liberty ([15]). Disabling to commit an indictable offence carried a maximum penalty of life imprisonment; the alternative assault charge carried a maximum of seven years; deprivation of liberty carried a maximum of three years ([16]). The prosecution later presented a new indictment alleging assault occasioning bodily harm while armed and deprivation of liberty. The respondent pleaded guilty to those charges, and a nolle prosequi was entered on the original indictment ([17]). The armed circumstance increased the maximum penalty for the assault charge to ten years ([18]).
The sentencing judge imposed 2½ years’ imprisonment for assault occasioning bodily harm while armed and one year for deprivation of liberty, concurrent. The judge declared 413 days in pre-sentence custody served and fixed the sentencing date as the parole release date, resulting in immediate release on court-ordered parole ([23]).
The Attorney-General appealed on the ground that the sentences were manifestly inadequate. The Court dismissed the appeal. It also allowed leave to adduce Mr Prasad’s affidavit, which placed the prosecution’s written submissions below before the Court. Other applications to adduce further evidence were dismissed because that material would only have been relevant if the appeal had succeeded and resentencing had become necessary ([49]–[50]).
The Court set out the two requirements for a Crown sentence appeal. The Attorney-General first had to demonstrate error in the sentencing discretion, then show that the case was an appropriate one for appellate intervention ([3]). For manifest inadequacy, it was not enough that the sentence differed markedly from sentences in comparable cases. The sentence had to be so far outside the range of available sentences that error could be inferred even though no specific error was identified ([4]). The Court also noted that Crown appeals are concerned with laying down principles for the guidance of sentencing courts ([5]).
The critical issue was what the charges required the prosecution to prove. The original disabling charge necessarily involved an allegation that the assault was committed with the intent to commit or facilitate an indictable offence, or to facilitate an offender’s flight. That intent was an essential element of the original offence ([19]). But the new assault count did not require proof of such an intent, and the prosecution did not allege that McDonald detained the complainant to facilitate another offence ([19]).
The Court made a parallel distinction between deprivation of liberty and kidnapping. For kidnapping under s 354 of the Criminal Code (Qld), the prosecution would have had to prove an intent “to procure anything to be done or omitted to be done by any person”. The deprivation-of-liberty charge under s 355 did not carry that same requirement ([20]). The Crown did not allege that McDonald detained the complainant in order to facilitate another offence. Consequently, the sentencing judge could not sentence on that basis ([21]–[22]).
This charge-based limit shaped the Court’s assessment of the Crown’s authorities. In R v George [2013] QCA 302, the offender had pleaded guilty to deprivation of liberty and assault occasioning bodily harm. The Court of Appeal in the present case compared the relevant circumstances. It noted that some features of the present attack and the armed circumstance might be more concerning, but the injuries in George were much more serious and that offender had a lengthy history of violent crime ([39]–[41]). The Court concluded that George did not support a finding that McDonald’s sentences were inadequate ([41]).
The Crown placed particular reliance on R v Von Pearson [2006] QCA 292. That case involved two kidnappings of young women, including forcible detention in a car, threats or violence, and substantially more serious harm. The Court identified the central problem with relying on it: the offences in Von Pearson were kidnappings. The offenders had pleaded guilty to those offences, thereby accepting the necessary elements, including the relevant intention or purpose. The sentencing judge in Von Pearson necessarily considered intention. In McDonald’s case, by contrast, intention to facilitate another offence was not part of the charges and could not be treated as part of the sentencing basis ([43]–[46]).
The Court added that even if the distinction between kidnapping and deprivation of liberty were put aside, the comparison did not show manifest inadequacy. The closest comparison was the second kidnapping in Von Pearson, which attracted three years’ imprisonment, but the harm there was more serious and the offender had a considerable criminal history and was on bail for other offences ([46]). The Attorney-General therefore failed to demonstrate manifest inadequacy ([47]). Since error had not been shown, the Court did not need to decide whether to exercise its discretion to intervene ([48]).
The judgment does not announce a change to the statutory elements of the offences or establish a new sentencing range. It applies the stated statutory distinction between kidnapping under s 354 and deprivation of liberty under s 355 of the Criminal Code (Qld), and the difference between the offence originally alleged and the replacement assault charge ([16], [18]–[20]).
Its contribution is in applying established appellate principles to a case where the prosecution changed the charges before the guilty pleas and sentencing. The Court emphasised that the charges and prosecution case define which intent or purpose may properly form part of the sentencing basis. An aggravating factual theory cannot be treated as established merely because it might appear plausible from the circumstances, where it was not alleged as part of the offence and was not pursued by the prosecution ([19]–[22], [45]).
The Court also applied the stringent manifest-inadequacy standard stated in the overview. A comparison with other sentences is relevant only insofar as the cases are genuinely comparable. A marked difference between sentences does not, on its own, establish error. The sentence must be so far outside the range of sentences available that error should be inferred ([4]). The distinction between the offences in the comparators and those before the sentencing judge was therefore important, rather than a technicality.
For Crown appeals, the judgment restates a two-stage framework: error must be demonstrated, and appellate intervention must separately be appropriate ([3]–[5]). Because the first stage was not satisfied, the Court did not consider the second stage in this case ([48]). The reasons therefore do not decide whether the Court would have intervened had it found error.
At [4], the Court explains the high threshold for manifest inadequacy: “it is necessary to show that the sentence imposed was so far outside the range of sentences which could have been imposed, that error should be inferred”. In plain English, the Crown must establish more than that another judge might have imposed a longer sentence or that another sentence appears preferable. The alleged inadequacy must be extreme enough to permit an inference of sentencing error.
At [6], the Court identifies the Crown’s central misstep: the argument “effectively ignored the consequences of the prosecutorial choices made in framing the charges”. In plain English, the Court assessed the sentence for the offences actually prosecuted and admitted, not for a more serious offence the prosecution had earlier considered or could potentially have alleged.
At [19], the judgment explains that the new assault count did not require the prosecution to prove an intent to facilitate another offence. At [21], it states that the sentencing judge could not sentence on the basis that McDonald detained the complainant to facilitate another offence. This means that the sentencing judge’s task was bounded by the offences and case presented, not by an uncharged theory about why the conduct occurred.
At [45], the Court contrasts the present charges with the kidnapping pleas in Von Pearson. Because intention or purpose was a necessary consideration in those kidnapping offences, that case did not provide a direct benchmark for the offences McDonald admitted. The Court further observed that treating the unalleged purpose as established in McDonald’s case would have been an error.
At [47]–[48], the Court concludes that the Crown did not show manifest inadequacy and that the question of intervention did not arise. In plain English, the appeal ended at the error stage: there was no need to decide whether the Court should alter a sentence despite a demonstrated error.
The judgment is particularly relevant where the prosecution changes the indictment, accepts a plea to a lesser or different offence, or does not allege an intent that would be required for a more serious offence. In that situation, the sentencing court’s ability to treat the conduct as involving the uncharged intent may be limited by the charges and the case advanced by the prosecution ([18]–[22]).
It is also relevant where the Crown argues manifest inadequacy by comparing a sentence for one offence with sentences imposed for a different, more serious offence. The Court’s approach calls for attention to the elements of each offence, the facts admitted or proved, the harm caused, and the offender’s relevant circumstances. In this judgment, kidnapping cases were not suitable benchmarks for deprivation of liberty because kidnapping required proof of an additional intent or purpose ([20], [45]–[46]).
The decision also matters where a Crown appellant relies on the difference between the sentence imposed and sentences in other cases. The Court reiterates that such a difference is not sufficient by itself. The threshold is whether the sentence is so far outside the available range that error can be inferred ([4]). George and Von Pearson illustrate why a comparator’s offence, injuries and offender history matter to the analysis ([39]–[46]).
These points remain dependent on the particular charges, agreed facts and submissions in each case. The judgment does not say that every change to an indictment prevents a sentencing judge from considering surrounding circumstances. Its reasoning concerns the specific distinction between the offences charged here and the intent or purpose required for the more serious offences used as comparisons.
The supplied judgment does not identify any later decisions applying, distinguishing or considering R v McDonald; Ex parte Attorney-General [2025] QCA 85. It was delivered on 30 May 2025, and the materials provided contain no subsequent case history. No account of its later treatment can therefore be given on this source alone.
The judgment itself discusses earlier authorities. It cites Hili v The Queen (2010) 242 CLR 520 for the manifest-inadequacy threshold, CMB v Attorney-General (NSW) (2015) 256 CLR 346 for the role of Crown appeals, and R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150 in relation to the terminology “residual discretion” ([4]–[5] and footnotes). It distinguishes R v George [2013] QCA 302 and R v Von Pearson [2006] QCA 292 as sentencing comparators ([41], [45]–[46]). It refers to R v Nelson-Adams [2018] QCA 26 and R v Omar [2012] QCA 23 as authorities relied upon by the Attorney-General, but says it was only necessary to consider Von Pearson ([42]).
The Court did not decide what it would have done if manifest inadequacy had been demonstrated. It expressly said that the question of the proper exercise of the Court’s discretion did not arise once no error was shown ([48]). The judgment therefore provides no case-specific conclusion on whether appellate intervention would have been appropriate after a finding of error.
The decision also does not establish a general sentencing range for assault occasioning bodily harm while armed or deprivation of liberty. It concerns whether the Crown’s particular arguments and cited comparisons demonstrated manifest inadequacy on the charges and facts before the Court. The reasons should not be read as setting a standard sentence or as holding that a sentence of the same length would be appropriate in a materially different case.
Nor does the judgment decide the consequences of every possible prosecution choice. Its analysis concerns the shift from a charge that required proof of intent to facilitate an indictable offence to charges that did not require proof of that intent or of a purpose to procure an act or omission. The precise effect of a different indictment, agreed statement of facts, plea basis or prosecution submission would depend on what that material actually established.
Finally, the source supplied does not show how later courts have treated the decision. Any assessment of its subsequent influence would require later judgments or other legal sources, which are not included here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: 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 McDonald; Ex parte Attorney-General (Qld) [2025] QCA 85
PARTIES: R / v / McDONALD, Brock Andrew / (respondent) / EX PARTE ATTORNEY-GENERAL OF QUEENSLAND / (appellant)
FILE NO/S: CA No 2 of 2025 / DC No 178 of 2024
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Attorney-General (Qld)
ORIGINATING COURT: District Court at Bundaberg – Date of Sentence: 11 December 2024 (Kent KC DCJ)
DELIVERED ON: 30 May 2025
DELIVERED AT: Brisbane
HEARING DATE: 19 May 2025
JUDGES: Bond and Brown JJA and Kelly J
ORDERS: Leave given to adduce the affidavit of Mr Prasad. Otherwise, the applications to adduce further evidence be dismissed. Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where the respondent pleaded guilty to the offences of assault occasioning bodily harm while armed and deprivation of liberty – where the respondent was sentenced to 2 ½ years’ imprisonment with immediate parole release after having served a little over 13 months in pre-sentence custody – where the Attorney-General appealed against the sentences on the grounds of manifest inadequacy – where insufficient attention paid to the consequences of prosecutorial choices made in framing the charges to which the respondent pleaded and for which the respondent was sentenced – where sentences imposed for kidnapping offences were not appropriate benchmarks for an appeal against sentence for deprivation of liberty – where manifest inadequacy was not demonstrated – where unnecessary to consider whether the Court of Appeal ought to exercise its residual discretion to intervene / Criminal Code (Qld), s 339, s 354, s 355 / Penalties and Sentences Act 1992 (Qld), s 9(3) / R v George [2013] QCA 302, distinguished / R v Von Pearson [2006] QCA 292, distinguished
COUNSEL: C N Marco for the appellant / C J Tessmann for the respondent
SOLICITORS: Director of Public Prosecutions (Queensland) for the appellant / Legal Aid Queensland for the respondent
THE COURT:
Overview
The respondent was convicted on his own pleas of guilty of the offences of assault occasioning bodily harm, while armed (count 1) and deprivation of liberty (count 2). The respondent was effectively sentenced to 2 ½ years’ imprisonment with immediate parole release after having served a little over 13 months in pre-sentence custody.
The Attorney-General appeals against the sentences imposed on the respondent for that offending.
On such appeals the burden on the Attorney-General is, first, to demonstrate error in the exercise of the sentencing discretion by the sentencing judge and, second, to demonstrate that the case is an appropriate case for appellate intervention.
As to the former issue the Attorney-General relies on the sole ground that the sentence imposed was manifestly inadequate. In this regard it is not enough to show that the sentence is markedly different from sentences that have been imposed in relevantly comparable cases. To the contrary, it is necessary to show that the sentence imposed was so far outside the range of sentences which could have been imposed, that error should be inferred even though no specific error may be identified.1
As to the latter issue, if error is demonstrated, the Attorney-General must demonstrate to the Court that the case falls within the rare category of cases in which it is appropriate for this Court to exercise its discretion to intervene. Appeals by the Attorney-General are concerned with laying down principles for the guidance of sentencing courts.2 The discretion whether or not to intervene even if error is demonstrated is often called the residual discretion.3
In the present case and for reasons which follow, we conclude that the Attorney-General cannot demonstrate that the sentence was manifestly inadequate. The submission advanced by counsel to the contrary was founded on the fundamental misconception that sentences imposed for kidnapping offences were appropriate benchmarks for sentencing in this case. This submission effectively ignored the consequences of the prosecutorial choices made in framing the charges to which the respondent pleaded and for which the respondent was sentenced.
Error not having been demonstrated, the question of the proper exercise of discretion by this Court does not arise. The appeal must be dismissed.
The circumstances of the offending
At about 2.50 am on Saturday 21 October 2023 the 18-year-old female complainant was walking home. The respondent, a 43-year-old man who was unknown to her, approached her from behind, wrapped a rope around her neck and tightened the rope. He dragged her from the pathway on which she was walking and pulled her into his car.
He placed her on the back seat of his car face down with her head towards the right side of the car. He knelt on top of her with his knees on either side of her calves. At some point he removed the rope from around her neck. He closed the car doors. She screamed at him to let her go and asked where her phone was. He told her that the phone was outside on the ground and repeatedly told her not to look at his face.
Eventually she escaped the car. There was no evidence that the respondent had further restricted her efforts to do so. She picked up her phone, hid in a nearby bush and called a friend for help. A short time later the friend picked her up and drove her to another friend’s house where she spent the night.
The respondent’s offending against the complainant caused her these injuries:a superficial neck injury and abrasion to her neck;an abrasion to her right thigh; andan abrasion over her right knee.
On the next morning the complainant told her grandmother about what had happened. Her grandmother reported the incident to the police and drove her to hospital. Police met her at the hospital that afternoon and obtained a statement and took photographs of her injuries.
CCTV having identified his car, the respondent was quickly located by police and taken into custody on 25 October 2023. He refused to participate in a recorded interview and was remanded in custody.
The prosecutorial choices made in framing the charges to which the respondent pleaded and for which the respondent was sentenced
On 25 March 2024 the charges against the respondent were committed for trial by way of a Registry committal.
On 16 September 2024, an indictment was presented, alleging that the respondent had offended as follows:Count 1: Disabling to commit an indictable offence; or alternatively, assault occasioning bodily harm; andCount 2: Deprivation of liberty.
The maximum penalty for the charge of disabling to commit an indictable offence was life imprisonment.4 For the alternative charge in count 1 the maximum penalty was 7 years imprisonment.5 For count 2 the maximum penalty was 3 years imprisonment.6
The charges were the subject of a submission by the respondent to the prosecution which on 11 December 2024 led to –a new indictment being presented, alleging the respondent had offended as follows:Count 1: Assault occasioning bodily harm, while armed; andCount 2: Deprivation of liberty;the respondent being arraigned and pleading guilty to the counts alleged on the new indictment;a nolle prosequi being entered in relation to the old indictment; andsentencing proceeding by reference to an agreed statement of facts which recorded the matters referred to at [8] – [13] above.
It may be observed that count 1 had been reframed to pursue only the alternative charge from the old indictment, albeit that a circumstance of aggravation was alleged which had the result that the maximum penalty for that charge became 10 years’ imprisonment.7 Notably however the implications of the change to count 1 were more than merely choosing not to pursue a charge for which the maximum penalty was life imprisonment.
As count 1 had been initially framed, it had necessarily formed part of the prosecution case to allege that the respondent’s assault on the complainant had been done with the intent to commit or facilitate the commission of an indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence. Proof of such an intent was an essential element of the offence of disabling to commit an indictable offence. But the new indictment did not pursue that offence and proof of such an intent was not an essential element of the new count 1. It did not form part of the prosecution case in relation to count 1 of the new indictment to allege that the respondent had detained the complainant in order to facilitate the commission of some other offence against her.
The reasoning of the sentencing judge
In the present case the sentencing judge had noted the significance of the prosecutorial choices made in relation to count 2 and discussed them with counsel for the prosecution. The transcript reveals that the sentencing judge appreciated that proof of the offence of kidnapping would have required proof of intent; that the Crown had not sought to prove intent and had instead charged the lesser offence of deprivation of liberty; that there was a significant disparity between the maximum sentence available for kidnapping and that available for deprivation of liberty (namely 7 years’ imprisonment compared to 3 years’ imprisonment); and, further, that the penalties which kidnapping attracted were significantly higher than those which deprivation of liberty attracted.
Counsel for the prosecution drew to the sentencing judge’s attention that the maximum penalty for count 1 was 10 years’ imprisonment but acknowledged that there was no proof of intent in the sense earlier discussed. He made the submission as to the appropriate head sentence to which reference has already been made.
Counsel for the respondent drew the sentencing judge’s attention to the respondent’s antecedents. He also drew attention to the fact that the respondent had been diagnosed with a form of lung cancer and that it seemed he might have only 6 to 10 months left to live. Whilst in pre-sentence custody the respondent had been taken to hospital for treatment on a monthly basis and that treatment would have to continue once he was released on parole. In prison the respondent suffered from weakness and authorities had appointed another inmate to assist him. Counsel for the respondent submitted that the appropriate sentence was at the bottom of the range submitted by counsel for the prosecution, with immediate release on parole.
The sentencing judge’s remarks revealed that he regarded the respondent’s offending to be a strange but very disturbing incident. He accepted the prosecutor’s description that it was a terrifying abduction-type offence. He noted that the offending was very serious and that victim impact statements had revealed that it had had serious and ongoing financial and emotional impacts on the complainant and her family.
The sentencing judge stated that abducting a young woman in the early hours of the morning from the street with a rope around her neck carried with it a degree of seriousness that could not really be overstated, but went on to note the curious “second half” of the incident, namely that the respondent had essentially desisted some way into the incident. And, as earlier mentioned, the judge had already apprised himself of the fact that the prosecution did not allege intent.
The material before the sentencing judge revealed that the respondent was 43 years old at the time of the offending and was 44 years old at the time of sentencing. He had a Queensland criminal history that contained dated entries for wilful damage and contravening a domestic violence order. The judge concluded those entries were not relevant to his sentencing.
“There seems little utility in imposing a longer sentence, which is one that on your current medical information, you may not live to see the end of. It is helpful that you will be in the community supervised on parole for a period of time, and the parole authorities will no doubt keep a careful eye on you.”
Consideration of the appeal ground
Before this Court counsel for the Attorney-General submitted that the sentence was manifestly inadequate and should be set aside. Counsel submitted that the Court should re-sentence so that –a sentence of not less than 3 years’ imprisonment for count 1 be imposed; andthe sentence for count 2 be affirmed.
Counsel submitted that the order made in relation to parole would depend on the head sentence imposed. Counsel submitted that it might be necessary to require the respondent to return to custody for a short period despite his already having been released on court-ordered parole.
Counsel submitted that this Court should reach the conclusion that the sentence imposed was unreasonable and plainly unjust and that it was so far outside the range of sentences which could have been imposed that error must be inferred even though no specific error could be demonstrated. In support of that submission Counsel suggested that the sentencing judge must have placed undue weight on the consideration of the health of the respondent and insufficient weight on the legitimate expectations of deterrence, denunciation and protection of the community and the fact that the respondent had managed to commit the offences when he had already been the subject of his cancer diagnosis.
The fundamental flaw in the submission was that the cases upon which counsel relied to support the argument either did not support the submission or were not comparable at all because they were kidnapping cases.
The only case in which the charges faced by the offender might be said to have been comparable to the present case was R v George.8 In that case, a 34-year-old female complainant had visited the offender in his unit, but she had been detained by him when she indicated a desire to leave. After she eventually escaped by climbing down a drainpipe, she was pursued by the offender who caught her and punched her to the head and torso and tried to drag her back up the stairs. He was stopped by neighbours who intervened to assist. The complainant suffered multiple lacerations, swelling, and bruising to her face and body, a subgaleal haematoma and fractured ribs. The offender was 46 years of age at the time of the offending and was 48 years of age at sentence. He had a serious and lengthy criminal history that included prior convictions of violence that had attracted periods of imprisonment.
The offender had been convicted on his plea of guilty of deprivation of liberty and assault occasioning bodily harm and sentenced to concurrent terms of 6 months imprisonment for the deprivation of liberty and 18 months imprisonment for the assault. The Court reasoned as follows:A head sentence of two years reduced to a notional head sentence of 18 months to take the plea of guilty into account was an appropriate starting point before discounting to allow for the presentence custody. Such a starting point was moderate given the seriousness of the attack and the applicant’s history of crimes of violence.Given the appellant had spent 15 months in pre-sentence custody, the notional head sentence of 18 months ought be further reduced by that time to three months’ imprisonment. That sentence ought attach to the offence of assault occasioning bodily harm.A sentence of six months would have been appropriate for the offence of deprivation of liberty and as the applicant had already been in custody for substantially longer than that period awaiting sentence, it was appropriate that on that charge the offender be convicted but not further punished.The appeal should be allowed, and the sentence altered accordingly.
“In the early hours of 28 February 2004 the 22 year old female complainant was returning to her home after a night out with friends. The applicant was driving in his car and offered her a lift. She refused and continued walking on her way. He again offered her a lift. She thought he was a security guard because of his fitted black T-shirt and because he appeared to be stopping in front of premises and checking them. He suddenly ran around behind his car towards her. He was holding a 25 cm long knife with jagged edges. She feared for her safety and screamed. He said ‘Stop screaming or I will kill you.’ She said: ‘Please don’t. Please don’t.’ He grabbed her arm and guided her towards and into the boot of his car. He closed the boot, locking it so she could not get out. She was in great fear for her safety. He drove off. She rang triple 0 on her mobile phone and requested help. After about 15 or 20 minutes of trying to open the boot latch she finally succeeded. She escaped by jumping out of the moving vehicle. She landed heavily on the road. She fled and hid. She used her mobile phone to again call police. Once she was safe with police officers she realized she was badly injured and they took her immediately to hospital. In jumping from the moving vehicle she suffered abrasions to her face, shoulder, buttocks, left hand and both feet. Residual scarring and disfigurement even with treatment remains likely. Photographs were tendered at sentence of her extensive injuries. She was four weeks pregnant at the time of the offences. She terminated the pregnancy following medical advice that the foetus may have been injured when she jumped from the car. She was in great physical pain for two weeks and, as would be expected, has suffered very significant emotional and psychological disturbances after this terrifying encounter.
Unfortunately the applicant was not immediately apprehended and he struck again about two months later. On 24 April 2004 another 22 year old woman was walking in Surfers Paradise about 3.00 am when the applicant ran at her holding a knife with an eight to 10 cm long blade with jagged teeth. She screamed and tried to push the knife away from her body, cutting her hand. He pushed some thick woollen material into her mouth to muffle her screams and dragged her towards his car. He bundled her into the back seat through the passenger side door saying ‘I’m not going to hurt you. Just come with me’. She continued to scream and yell for help. He pushed her head down and closed the door. She struggled but he overpowered her with great force. She tried to open the door to escape but it was locked. He placed a necktie around her head to cover her mouth which was still gagged. He put a small blanket over her body and told her to lie down and keep still. A Good Samaritan, the complainant in the serious assault charge, opened the rear door of the car and asked if everything was alright. The appellant punched this man three times to the head. Thanks to the bravery of this concerned citizen, the young woman was able to escape and run for help. Police arrived and she received medical assistance for her injuries. She had abrasions to her back and a cut to her right ring finger resulting in tendon damage, which later required surgery. Without treatment her hand would have been permanently injured. She too has suffered significant ongoing physical and emotional harm.”
“The [sentencing] judge was right to consider the applicant’s offences of serial kidnapping were in the worst category of that offence. The forcible detention off the street of young women unknown to the offender in the early hours of the morning by bundling them into the boot or back seat of a car whilst threatening or using a large knife is most serious criminal conduct warranting condign punishment.”
But within the quote relied on is the flaw in the reliance on it. The offending considered in Von Pearson was kidnapping. As Jerrard JA observed, “[the offender] pleaded guilty to those two offences of kidnapping, and accordingly accepted that by his conduct he had satisfied the necessary elements of those offences.” The intention or purpose of the offender was therefore a necessary consideration. Although the offender had told police that he had not intended to bash, rape or murder his victims and had only intended to scare them, the sentencing judge rejected the contention that the offender had not intended to harm the complainants. The sentencing judge in Von Pearson necessarily took intention into account. As has already been noted, no such possibility exists in the present case. Indeed, it would have been an error if the sentencing judge had done so.
For reasons already expressed, sentences imposed for kidnapping offences were not appropriate benchmarks for sentencing in this case. And it may be noted that even if that consideration was ignored, any comparison with the sentence in Von Pearson does not suggest that the 2 ½ years imposed in the present case was manifestly inadequate. The most closely analogous offending would be the second kidnapping offence for which 3 years was imposed. But the harm done to the complainant in Von Pearson was more serious than that done to the complainant in the present case and the offender had a considerable criminal history and was on bail for other offences at the time of the kidnapping offences.
The argument presented on behalf of the Attorney-General fails to demonstrate that the sentence was manifestly inadequate.
Conclusion
No error having been demonstrated; it is not necessary to consider the submissions which were made in relation to this Court’s discretion. The appeal must be dismissed.
For completeness it is appropriate to observe that both the Attorney-General and the respondent applied for leave to adduce new evidence. The application by the Attorney-General to adduce the affidavit of Mr Prasad should be allowed because it sought to perfect the appeal record by placing before the Court the written submissions which the prosecution had relied on below. Otherwise, the applications sought to adduce further evidence which would only have been relevant if the appeal had been allowed and this Court had determined to exercise its discretion to re-sentence. Insofar as they sought to do so, those applications should be dismissed.
The orders of the Court are:Leave given to adduce the affidavit of Mr Prasad.Otherwise, the applications to adduce further evidence be dismissed.Appeal dismissed.
Hili v The Queen (2010) 242 CLR 520 at [59] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. ↩
CMB v Attorney-General (NSW) (2015) 256 CLR 346 at [55] per Kiefel, Bell and Keane JJ. ↩
R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150 at [36] and [56]-[57] per Bond JA, but cf at [72]-[74] per Dalton JA who whilst agreeing with Bond JA generally was critical of the use of the terminology “residual discretion”. ↩
Section 315 of the Criminal Code (Qld). ↩
Section 339(1) of the Criminal Code. ↩
Section 355 of the Criminal Code. ↩
Section 339(1) and (3) of the Criminal Code. ↩
R v George [2013] QCA 302. ↩
R v Von Pearson [2006] QCA 292. ↩
R v Nelson-Adams [2018] QCA 26. ↩
R v Omar [2012] QCA 23. ↩
R
McDonald; Ex parte Attorney-General
(2010) 242 CLR 520
(2015) 256 CLR 346
Appeal dismissed. Leave was given to adduce the affidavit of Mr Prasad; otherwise the applications to adduce further evidence were dismissed ([50]).
Nor was there any analogous requirement concerning proof of intent or purpose in relation to the offence alleged in count 2. In this respect the offence of deprivation of liberty contrary to s 355 of the Criminal Code may be compared with the more serious offence of kidnapping, contrary to s 354 of the Criminal Code. If count 2 had alleged the offence of kidnapping, in addition to proving the element of unlawful and forceable taking or detention, the prosecution would have been required to prove that the offender acted “with intent … to procure anything to be done or omitted to be done by any person”. Count 2 alleged the lesser offence of deprivation of liberty. It had never formed part of the prosecution case in relation to count 2 to allege that the respondent had deprived the complainant of liberty in order to facilitate the commission of some other offence against her.
The result was that a judge sentencing in respect of count 1 in the new indictment could not sentence on the basis the respondent’s intention or purpose in assaulting the complainant as alleged in count 1 was to facilitate the commission by the respondent of some other offence against her. Nor could a judge sentencing in respect of count 2 sentence on the basis that the respondent’s intention or purpose of detaining the complainant as alleged in count 2 was to facilitate the commission by the respondent of some other offence against her.
Consistently with the case as framed, the prosecution made no submission to the sentencing judge that he should sentence on either such basis. Counsel for the prosecution acknowledged that the Crown did not seek to prove intent. No doubt this informed his choice to submit that the appropriate head sentence was within the range of 2 ½ to 3 years’ imprisonment and, because there had been a timely plea and the respondent had served more than a third of such a head sentence in pre-sentence custody, there should be immediate release on parole.
The respondent was sentenced as follows:On Count 1: 2 ½ years’ imprisonment.On Count 2: 1 year imprisonment.Both sentences were to be served concurrently.The period of 413 days which the respondent had served in pre-sentence custody from 25 October 2023 to 10 December 2024 was declared to be time served under the sentences of imprisonment.The Court fixed the date of sentencing as the respondent’s parole release date, with the effect that he was immediately released on court ordered parole.Convictions were recorded.
The material also revealed that there was a finding in New South Wales in January 2023 that an offence of sexual touching a person without consent had been proved but there was no information as to whether any penalty had been imposed. The sentencing judge found as there was no way for him to understand the seriousness of that offence, it had borderline if any relevance to the sentencing process before him.
The sentencing judge also noted the respondent’s unremarkable antecedents. The respondent had been born in Goondiwindi. His mother and other family members were in Bundaberg. He had a year 10 education and was qualified as a barista, and also had a certification 3 in small business management. He had an unremarkable work history.
The only other feature significant to the sentencing to which the sentencing judge referred was what he had been told by counsel for the respondent concerning the respondent’s health. As the allegations concerning the health of the respondent were not challenged, s 132C of the Evidence Act 1977 (Qld) permitted the sentencing judge to act on them. The sentencing judge noted that the respondent’s future was, unfortunately for him, not bright and that the respondent’s counsel had differed from the submissions made by the prosecution as to sentence only by arguing for the bottom of the prosecution’s range “in the context of [the respondent’s] minimal criminal history, the curious facts, and [the respondent’s] plea of guilty and health problems.”
The sentencing judge expressly acknowledged that he took into account that the purposes of sentencing the respondent included:punishing the respondent to an extent and in a way that was just in all the circumstances, that is balancing competing factors to arrive at a just, that was a fair, sentence;providing conditions in the court’s orders that would help him to be rehabilitated, although that consideration was less relevant given the respondent’s unfortunate health diagnosis;to deter the respondent or others from committing the same or similar offences;making it clear that the community acting through the court denounced this sort of conduct; andprotecting the Queensland community from any future offending by the respondent.
The sentencing judge noted that he was to have primary regard to factors identified in s 9(3) of the Penalties and Sentences Act 1992 (Qld), expressly referencing the risks to the community; the serious nature of the offending; the personal circumstances of the victim; the respondent’s antecedents and criminal history and his pleas of guilty. His Honour found that the determining factor in deciding to accept the submission of the respondent’s counsel to adopt the bottom of the range suggested by the prosecution was the respondent’s terminal diagnosis. His Honour observed:
On the one hand the circumstances in which the present complainant was attacked and the existence of the circumstance of aggravation in the assault might be said to be more concerning than the circumstances on George, but, on the other hand, the injuries caused to the present complainant were much less serious than those suffered by the complainant in George and the offender in George had a very serious and lengthy criminal history of violence. It is not arguable that a consideration of George provides any support for a conclusion that the 2 ½ years’ imprisonment imposed for the assault count or the 12 months imprisonment imposed for the deprivation of liberty count in the present case were inadequate in any respect.
Counsel for the Attorney-General placed more reliance on R v Von Pearson,9 R v Nelson-Adams,10 and R v Omar,11 suggesting that Von Pearson was the strongest case supporting the submission of manifest inadequacy.
It is only necessary to consider Von Pearson. An application for leave to appeal against a sentence was refused by the Court. The facts were recorded by McMurdo P (with whom Jerrard and Keane JJA agreed) in the following way: