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[2025] QCA 220
mixed. Leave to appeal was granted only to correct the wording of the orders: the six-month and nine-month terms were suspended after the offender had served 96 days, subject to a two-year operational period;...
The Court of Appeal did not reduce the sentences or accept the applicant’s arguments that they were too severe. It found that the incorrect maximum penalty had not affected the sentencing decision. The Court did, however, correct the wording because the District Court intended the prison terms to be suspended after MEW had served 96 days, rather than suspended immediately. The sentences and the declaration that 96 days had already been served otherwise remained in place.
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2,302 words · generated 07/10/2026
In R v MEW [2025] QCA 220, the Queensland Court of Appeal considered an application for leave to appeal sentences imposed for three child sexual offences. Bowskill CJ delivered the principal reasons, with Bradley JA and Wilson J agreeing ([1], [32]-[33]).
1 cited instrument linked from this judgment.
MEW had pleaded guilty to two counts of indecent treatment of a child under 16 and one count of indecent treatment of a child under 12. The offending occurred on 27 January 2024. At a park, MEW approached a 12-year-old girl he did not know. He kissed her, attempted to undo the button on her shorts, and later followed and held her while trying to kiss her again. She pushed him away and ran off ([12]). In a nearby shopping-centre toilet, he approached an 8-year-old boy from behind, lifted the boy’s shirt, pulled up his shorts and invited him into a toilet cubicle. The boy refused and ran to find his mother ([13]).
MEW was arrested the next day and held in custody for 96 days, until bail was granted on 2 May 2024 ([14]). At sentence, the District Court imposed concurrent terms of six months’ imprisonment on count 1 and nine months on count 2. The judge ordered both terms suspended “forthwith” for two years, declared the 96 days of pre-sentence custody as imprisonment already served, and made a three-year probation order for count 3 ([1]).
The sentence appeal concerned counts 1 and 2. MEW argued that the sentences were manifestly excessive because of five alleged errors, including failure to account for youth, mental impairment and childhood exposure to domestic violence. He also argued that the judge should have imposed partly suspended terms rather than wholly suspended terms ([2], [11]). The Crown disputed those arguments but identified an error in the sentencing process: the judge had proceeded on the basis that the maximum penalty for counts 1 and 2 was 10 years’ imprisonment, when the applicable maximum was 14 years ([3]).
The Court did not find that error material and rejected the claim that the sentences were manifestly excessive. It did find a separate error in the form of the orders. The judge had intended the prison terms to be suspended after MEW had served the 96 days, not suspended immediately. The Court therefore amended the records to state that intention expressly, while otherwise confirming the sentences and custody declaration ([4], [31]).
The Court addressed the maximum-penalty error first. A sentencing court must take the maximum penalty into account under s 9(2)(b) of the Penalties and Sentences Act 1992 (Qld). But, as Bowskill CJ explained, an error on that point does not automatically justify appellate intervention. The question is whether it was material to the exercise of the sentencing discretion ([6]).
The Court compared the circumstances with R v HCY [2025] QCA 107. In HCY, the prosecutor had misstated the maximum penalty in the opposite direction, referring to a higher maximum than applied at the time of the offence. The Court in HCY had concluded the error was not material in its circumstances ([7]). In MEW, the error favoured the applicant because the judge referred to a lower maximum. But the maximum had not been discussed at the sentencing hearing, and the principal comparable case relied on by both parties, R v GAW [2015] QCA 166, addressed the correct maximum ([8]). The higher maximum for count 3 was also correctly identified and referred to ([9]). Taken together, these features led the Court to conclude the error did not warrant intervention ([10]).
On the alleged errors concerning the sentencing discretion, the Court considered both statutory requirements and the circumstances of the offending. Section 9(4)(c) requires an offender sentenced for a sexual offence against a child to serve an actual term of imprisonment unless exceptional circumstances exist ([16]). The judge had observed that MEW had already served a period of imprisonment. In context, the Court understood this as recognising that he had served 96 days, making it unnecessary to decide whether exceptional circumstances would otherwise have permitted a sentence without actual imprisonment. The judge had not fettered the discretion ([17]-[21]).
The Court also rejected the argument that the sentences failed to advance community protection. It described community protection as the paramount sentencing consideration in this case. It said that protection can be addressed in different ways, including supervision through parole or probation, and the deterrent effect of a suspended prison term. The combination of the suspended terms and probation was appropriate in light of the offending against two children in separate public places ([22]-[23]).
Youth did not establish error. MEW was 20 and had no criminal history at the time of the offences, but the Court considered the serious and concerning nature of the conduct, the indicated diagnosis of paedophilic disorder, the need for treatment and supervision, and a troubling breach of bail. The sentencing remarks showed that the judge had taken his young age into account. The Court held that youth could not outweigh the other relevant considerations in this case ([24]).
The Court considered the mental impairment argument with care. The psychologist’s material referred to a moderate intellectual disability, but did not suggest that it caused the offending. By contrast, the indicated paedophilic disorder was described as plainly causally connected to the offending and was consistent with reported prior diagnoses. The psychologist identified elimination of deviant arousal patterns as the primary criminogenic treatment need ([26]). The Court referred to R v HYQ [2024] QCA 151 at [44]-[45] for the principles raised by the applicant, and to the policy described through R v Verdins and R v Yarwood [27]. It nevertheless concluded that denunciation and deterrence, particularly personal deterrence, remained relevant where an offender with paedophilic disorder had persistently and brazenly offended against two children in public places ([28]).
Finally, the Court found that the judge had taken account of MEW’s exposure to domestic violence and history of sexual abuse. The sentencing remarks expressly referred to those matters. The Court noted that neither counsel had addressed ss 9(2)(gb) or 9(10B) of the Act, and considered that the passing reference to domestic violence in the psychologist’s report did not directly raise the operation of s 9(10B) ([29]).
The judgment does not announce a new general sentencing test. Its treatment of the maximum-penalty error applies the existing proposition that the maximum is a required consideration under s 9(2)(b), while emphasising that appellate intervention turns on materiality in the particular case ([6]-[10]). Before this decision, the judgment’s account of HCY had already illustrated that a misstatement of a maximum penalty may be immaterial when the circumstances show it did not affect the sentencing exercise ([7]). MEW applies that approach to an error that favoured the offender.
The decision also applies the statutory rule in s 9(4)(c) concerning actual imprisonment for sexual offences against children. It does not state that the rule can be disregarded whenever an offender has spent time in custody. Rather, the Court’s reasoning was case-specific: the judge had recognised that MEW had already served 96 days, and the question whether exceptional circumstances would otherwise apply was therefore moot on the facts as presented ([16]-[21]).
On mental impairment, the judgment refers to HYQ and to Verdins and Yarwood, but it does not set out a comprehensive restatement of those authorities. Its application turns on the evidence described in the sentencing record: the intellectual disability was not said to have caused the offending, while the paedophilic disorder was treated as causally connected. The Court then assessed deterrence and denunciation in the context of the offending and risk described in the judgment ([25]-[28]).
The clearest practical change made by the Court was to the wording of the sentence records, not to the substantive sentence. The amended orders specify that imprisonment is suspended after 96 days have been served. They clarify the sentencing judge’s intention and avoid the potential ambiguity in the original “forthwith” wording ([31]).
At [6], the Court said: “But it does not follow that an error of this kind warrants appellate intervention. That depends on whether the error is material.” In plain English, identifying a mistake in the sentencing process is not the end of the appeal analysis. The question is whether the mistake mattered to the sentence imposed.
At [21], the Court said there was “no basis to conclude the sentencing judge fettered the sentencing discretion”. It explained that the judge had made the “obvious point” that the applicant had already served actual custody. In plain English, the judge was not treating imprisonment as unavoidable without considering the statutory exception; the 96 days already spent in custody resolved the issue in the circumstances of this case.
At [23], the Court described the “Damoclean effect” of a suspended term of imprisonment as one way to account for community protection. It held that supervision and a suspended term could operate together. In plain English, a suspended sentence can have a continuing deterrent effect because further imprisonment may follow if the offender commits another imprisonable offence during the operational period. The Court considered that effect alongside probation, rather than treating the options as mutually exclusive.
At [27], the Court referred to the policy captured in Yarwood: if the public understood the extent of an offender’s illness, it might not require “condign punishment” and punishment might be ameliorated. The passage explains a policy consideration associated with mental impairment. The Court did not treat it as an automatic rule requiring a reduced sentence here.
At [31], the Court said the judge intended the sentences to be suspended “after the period the applicant had already served (96 days)”. In plain English, the original orders did not clearly say what the sentencing judge meant. The Court corrected the records to make that sequence explicit.
The materiality reasoning is most closely connected to sentencing cases where a maximum penalty was misstated, but the record may show that the error did not inform the sentencing decision. In this case, the maximum was not discussed; the comparable authority addressed the correct maximum; and a higher maximum for another count was correctly identified ([7]-[10]). The judgment does not say that those features will always make an error immaterial. The assessment remains tied to the circumstances of the sentencing.
The s 9(4)(c) discussion concerns sentencing for a sexual offence against a child where the offender has already served a period in custody. Here, the Court accepted that the actual-custody issue was moot because MEW had already served 96 days ([16]-[21]). The judgment does not determine how that provision would apply where an offender had served no custody or where the sentencing judge’s intention was unclear.
The community-protection discussion arises in a case involving two child victims, separate public places, persistent conduct, and an offender described as requiring treatment, support and supervision ([12]-[15], [23]-[30]). The Court accepted a combined structure of imprisonment suspended after actual custody and a separate probation order. Its reasons should be read in that context, not as a rule that this combination is appropriate in every child-offending case.
The wording issue arises where a sentence is intended to be suspended after a specified period already served, but the orders say it is suspended “forthwith” while separately recording time served. The Court treated that combination as potentially ambiguous and corrected it ([1], [31]).
The supplied judgment contains no information about decisions after R v MEW was delivered on 11 November 2025. Later treatment therefore cannot be assessed from this source alone.
The judgment itself discusses earlier authorities. It treats R v HCY [2025] QCA 107 as a recent comparison on materiality of a maximum-penalty misstatement, and notes that the error there was held immaterial in the circumstances described at [7]. It cites R v GAW [2015] QCA 166 as the principal comparable decision relied on by both parties, noting that it addressed the correct maximum and discussed the change to that maximum at [56] ([8]). It refers to R v HYQ [2024] QCA 151 at [44]-[45] for mental-impairment principles raised by the applicant ([25]), and to R v Verdins and R v Yarwood for the policy consideration concerning illness and punishment ([27]). The judgment records no later judicial application of MEW.
The judgment does not set out a general checklist for deciding when a maximum-penalty error is material. It explains why the error was immaterial on this record, but does not determine how much weight each feature should carry in a case where the maximum was expressly discussed, comparable cases used a different maximum, or the sentencing remarks otherwise show reliance on the mistaken figure.
The decision also leaves open how s 9(4)(c) would operate where the offender had not already served actual custody. The Court did not need to determine whether exceptional circumstances existed because of the 96 days already served ([21]).
On mental impairment, the reasons distinguish between a condition not said to have caused the offending and a disorder found to be causally connected. The judgment does not determine what evidence would be sufficient to establish the relevance of an intellectual disability to culpability, deterrence or sentence in another case. Nor does it supply a full account of the principles in HYQ, Verdins or Yarwood.
Finally, the Court corrected the wording of the orders because the sentencing remarks revealed the intended structure. The judgment does not discuss the approach where the sentencing remarks themselves are ambiguous or inconsistent with the written order.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v MEW [2025] QCA 220
PARTIES: R / v / MEW / (applicant)
FILE NO/S: CA No 95 of 2025 / DC No 53 of 2025
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Brisbane – Date of Sentence: 7 April 2025 (Rosengren DCJ)
DELIVERED ON: 11 November 2025
DELIVERED AT: Brisbane
HEARING DATE: 23 October 2025
JUDGES: Bowskill CJ and Bradley JA and Wilson J
ORDERS: “The offender is sentenced to imprisonment for a period of 6 months. Order that the term of imprisonment be suspended after the offender has served 96 days, and the offender must not commit another offence punishable by imprisonment within a period of 2 years if the offender is to avoid being dealt with for the suspended term of imprisonment.” / “The offender is sentenced to imprisonment for a period of 9 months. Order that the term of imprisonment be suspended after the offender has served 96 days, and the offender must not commit another offence punishable by imprisonment within a period of 2 years if the offender is to avoid being dealt with for the suspended term of imprisonment.”
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted, on his pleas of guilty, of two counts of indecent treatment of a child under 16 (counts 1 and 2) and a further count of indecent treatment of a child under 12 (count 3) – where the applicant was sentenced to nine months’ imprisonment for count 2, and a concurrent six months’ imprisonment for count 1, with both terms to be suspended “forthwith” for an operational period of two years – where 96 days of pre-sentence custody were declared as imprisonment already served for the sentences imposed – where the applicant was a young man with no prior criminal history at the time of the offending who had prior exposure to domestic violence as a child and who had been diagnosed with paedophilic disorder – where the applicant seeks leave to appeal the sentence on the ground that the sentences imposed were manifestly excessive, as a result of five specific errors, including the sentencing judge’s failure to ameliorate the sentence because of the applicant’s youth, mental health impairments and background as a victim of domestic violence – where the applicant seeks leave to appeal the sentence on the second ground that the sentencing judge erred in law by failing to pronounce partly suspended terms of imprisonment, rather than wholly suspended terms – whether the sentence was manifestly excessive, as a result of any of the five specific errors – whether the sentence was manifestly excessive as a result of the sentencing judge failing to pronounce partly suspended terms of imprisonment, rather than wholly suspended terms / CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant was convicted, on his pleas of guilty, of two counts of indecent treatment of a child under 16 (counts 1 and 2) and a further count of indecent treatment of a child under 12 (count 3) – where the sentencing judge mistakenly sentenced the applicant on the basis that the maximum penalty for counts 1 and 2 was ten years imprisonment, when it was in fact 14 years imprisonment, as a result of a misstatement of the maximum penalty on the agreed statement of facts – whether the misstatement of the maximum penalty was material to the exercise of the sentencing discretion / Penalties and Sentences Act 1992 (Qld), s 9(2)(b), s 9(2)(gb), s 9(4)(c), s 9(10B) / R v GAW [2015] QCA 166, cited / R v HCY [2025] QCA 107, considered / R v HYQ [2024] QCA 151, cited / R v Verdins (2007) 16 VR 269; [2007] VSCA 102, cited / R v Yarwood (2011) 220 A Crim R 497; [2011] QCA 367, cited
COUNSEL: J P Feely for the applicant / A D Anderson for the respondent
SOLICITORS: Rostron Carlyle Rojas Lawyers for the applicant / Director of Public Prosecutions (Queensland) for the respondent
BOWSKILL CJ: The applicant was convicted, on his pleas of guilty, of two counts of indecent treatment of a child under 16 (counts 1 and 2) and a further count of indecent treatment of a child under 12 (count 3). About a year before his conviction and sentence, which took place on 7 April 2025, the applicant had served 96 days in pre-sentence custody. He was sentenced to nine months’ imprisonment for count 2, and a concurrent six months’ imprisonment for count 1, with both terms to be suspended “forthwith” for an operational period of two years. The 96 days of pre-sentence custody was declared as imprisonment already served for the sentences imposed. In respect of count 3, the Court made a probation order for three years.
The applicant applies for leave to appeal against the sentences imposed on counts 1 and 2, on the grounds that:first, the sentences imposed were manifestly excessive, as a result of five specific errors (ground 1); andsecond, the sentencing judge erred in law by failing to pronounce partly suspended terms of imprisonment, rather than wholly suspended terms (ground 2).
The Crown does not accept the sentencing judge erred in any of those respects, but has drawn the Court’s attention to another error, namely, that the sentencing judge mistakenly sentenced the applicant on the basis that the maximum penalty for counts 1 and 2 was 10 years’ imprisonment, when in fact it was 14 years’ imprisonment. This error arose as a result of a misstatement as to the applicable maximum penalty on the agreed statement of facts.
I am not persuaded that the sentence was manifestly excessive, on the basis of any of the applicant’s contended errors. Nor do I consider that the misstatement of the maximum penalty was material to the exercise of the sentencing discretion in the circumstances of this case. I do consider, however, that the form of the order made by the sentencing judge was incorrect. Accordingly, I would:
1.Grant leave to appeal the sentences imposed on counts 1 and 2, only for the purpose of correcting the form of order.
2.Order that the Verdict and Judgment Record for count 1 be amended by substituting the first paragraph with the following:
“The offender is sentenced to imprisonment for a period of 6 months. Order that the term of imprisonment be suspended after the offender has served 96 days, and the offender must not commit another offence punishable by imprisonment within a period of 2 years if the offender is to avoid being dealt with for the suspended term of imprisonment.”
3.Order that the Verdict and Judgment Record for count 2 be amended by substituting the first paragraph with the following:
“The offender is sentenced to imprisonment for a period of 9 months. Order that the term of imprisonment be suspended after the offender has served 96 days, and the offender must not commit another offence punishable by imprisonment within a period of 2 years if the offender is to avoid being dealt with for the suspended term of imprisonment.”
4.Otherwise, confirm the sentences imposed for counts 1 and 2 and the declaration of pre-sentence custody made by the primary judge.
It is logical to deal with the error as to the maximum penalty first.
The maximum penalty is one of the matters a sentencing court must take into account (s 9(2)(b) of the Penalties and Sentences Act 1992 (Qld)). But it does not follow that an error of this kind warrants appellate intervention. That depends on whether the error is material.
This case is similar to the recent Court of Appeal decision in R v HCY [2025] QCA 107, in which the prosecutor misstated the maximum penalty for the offence in its written submissions. In that case, the misstatement was of a higher maximum than applied at the time the offence (trafficking) was committed (life imprisonment, rather than 25 years). However, the Court noted that the maximum penalty was not a matter on which there was any express discussion during the sentencing hearing and all comparable authorities that were relied on related to trafficking when the maximum penalty was still 25 years’ imprisonment. In that case, the Court held that the misstatement was not material in the circumstances of the sentencing of the applicant (at [19]).
In the present case, the error was actually favourable to the applicant (because a lower maximum penalty was referred to) but, like R v HCY, it was not a matter that was the subject of any discussion at the hearing, and the main comparable decision relied on, by both parties – R v GAW [2015] QCA 166 – addressed the correct maximum penalty (and the change to that maximum which took place in 2003 – see GAW at [56]).
What is more, count 3 carried a higher maximum penalty than counts 1 and 2, of 20 years, which was correctly identified by the prosecutor, and referred to by the sentencing judge.
In all the circumstances, this error was not material, and would not warrant any appellate intervention in the sentence imposed.
Turning then to the applicant’s first proposed ground. In contending that the sentences imposed for counts 1 and 2 were manifestly excessive, the applicant submits the sentencing discretion miscarried as a result of five specific errors, namely, that the sentencing judge:erred by fettering the sentencing discretion and misconstruing s 9(4)(c) of the Penalties and Sentences Act;erred in fact and law in applying the principle of community protection;failed to give effect to the fact that the applicant was a youthful first time offender;erred and failed to ameliorate the sentence because of the applicant’s mental impairments; andfailed to ameliorate the sentence by reason of the applicant’s background as a victim of domestic violence.
The sentence proceeded by reference to an agreed statement of facts. Counts 1 and 2 involved offending against a young girl, aged 12, on 27 January 2024. The applicant did not know her. She was playing on a swing in a park with her friend. The applicant was observed to be staring at them, and appeared to take photographs of them. He walked up to the girl, while she was on the swing, grabbed her face with his hand and kissed her on the cheek and then with his hand tried to undo the button on the front of her shorts. The kiss was described as a “tongue kiss” by the girl. The girl told him “no” and pushed him away. That was count 1. The girl went to leave with her friend, and the applicant followed her. He approached the girl again, grabbed her, touched her on the side and hugged her and tried to kiss her. The girl said she could feel the applicant’s penis pressing up against her body. He held her for about 15 seconds. The girl yelled “no”, pushed the applicant off and ran away. That was count 2.
“certainly three years’ probation for that ongoing supervision and support, and I certainly couldn’t really cavil with my learned friend’s submission as to nine months’ imprisonment, but I’d ask that it be served by way of a wholly suspended sentence…”
“I think probably the best way to go about it would be nine months’ imprisonment to declare the 96 days … for an operational period of three years to match the same duration as the probation order…”
It is clear in context that what counsel meant was “nine months’ imprisonment, to be suspended after 96 days…”, with those 96 days to be declared as time already served.
There is no basis to conclude the sentencing judge fettered the sentencing discretion, by misconstruing s 9(4)(c) as requiring that a sentence of imprisonment be imposed. Her Honour simply made the obvious point that the question whether there were “exceptional circumstances” for the purposes of that provision was a moot point – because the applicant had already served an actual period in custody.
As to the next contended error, the applicant accepts that community protection was “clearly important” given the circumstances of the offending as well as the applicant’s diagnoses of paedophilic disorder. He submits, however, that this factor “was not furthered by the imposition of the suspended terms of imprisonment”, and to the extent this principle “was used to justify further imprisonment being imposed this was in error”.
No such error was made. Community protection was, as the sentencing judge correctly found, the paramount sentencing consideration in this case. The way in which that factor is taken into account will vary with the circumstances of each particular case. Supervision – on parole, or probation – is one way. The Damoclean effect of a suspended term of imprisonment is another. The combination of both for the offending against two young children, in two different public places, by this offender was appropriate.
The applicant next contends that the sentencing judge erred by failing to take into account the applicant’s youth. That argument is not sustainable. It is clear on the face of the sentencing remarks that the sentencing judge did take into account the young age of the applicant. How that factor affects a sentence will vary from case to case. In this case, although the applicant was 20 at the time of the offences, and had no prior criminal history, the offending was seriously concerning, by a young man with an apparent diagnosis of paedophilic disorder, requiring treatment, support and supervision, who had breached his bail in a troubling way. His relatively young age could not overwhelm the other factors in this case, which supported the sentences imposed.
The fourth contended error is that the sentencing judge failed to ameliorate the sentence because of the applicant’s mental impairment. The applicant’s counsel submitted to the sentencing judge that the applicant’s disabilities and impairments of the mind “means that general and specific deterrence are of less significance in this case”. Before this Court, the applicant refers to the relevant principles which apply where an offender suffers from a mental impairment, by reference to the summary set out in R v HYQ [2024] QCA 151 at [44]-[45], and submits that it is not evident from the sentencing remarks whether the submission below was accepted and, if so, how. The applicant also submits that to the extent they had a role to play, denunciation and deterrence were “imparted” by the pre-sentence custody, and no further imprisonment ought to have been imposed.
Error in the wording of the sentence orders
It is clear from the sentencing remarks that the sentencing judge intended to impose a partially suspended sentence on the applicant – that is, that the sentences of imprisonment were intended to be suspended after the period the applicant had already served (96 days). The way in which the sentencing orders were worded is potentially ambiguous, in that it does not refer to suspension after serving that time, although does include a declaration of the time already served. It is appropriate that this wording be corrected, as already indicated.
BRADLEY JA: I agree with the reasons of Bowskill CJ and with the orders her Honour proposes.
WILSON J: I agree with the reasons of Bowskill CJ.
R
MEW [2025] QCA 220
(2007) 16 VR 269
Leave to appeal was granted only to correct the wording of the orders: the six-month and nine-month terms were suspended after the offender had served 96 days, subject to a two-year operational period; the sentences and declaration of pre-sentence custody were otherwise confirmed.
On the same day, although it is not clear whether it was before or after counts 1 and 2, the applicant was in a men’s toilet in a nearby shopping centre. A young boy, aged 8, had just used the urinal and was washing his hands, when the applicant approached him from behind. Using both hands on either side of the boy, the applicant lifted up his shirt and then grabbed either side of the boy’s shorts and pulled them up higher. The applicant said “come with me into the toilets” while at the same time motioning with one hand towards the toilet cubicle. The boy said “no”, and ran out of the men’s toilets straight into the women’s toilets where his mother was. This was count 3.
The applicant was identified through photographs taken of him by the girl’s sibling, after she was picked up from the park by her grandmother, and by the boy’s mother, as the applicant came out of the toilet, as well as from CCTV footage from the shopping centre. He was arrested the following day, and remanded in custody from 28 January 2024 until he was granted bail, 96 days later, on 2 May 2024.
The applicant was a young man, 20 years old, at the time he committed the offences. He had no prior criminal history, but by the time he was sentenced he had a conviction for breaching his bail, in circumstances described as being found loitering in a public park without the supervision of his support worker. In a psychologist’s report tendered at sentence, it was noted that he had been diagnosed with a moderate intellectual disability at a relatively young age, and had been living in supported accommodation for some time, with a substantial NDIS support package recently approved. He had a prejudicial childhood, having been in and out of foster care since he was five. His parents were both drug users, and he was exposed to domestic violence until his father left the family home. The applicant also told the psychologist he had been the victim of sexual abuse, by his biological father when he was five and by a worker in a foster care house when he was about seven. The psychologist noted that the applicant had previously been diagnosed with paedophilic disorder and complex post-traumatic stress disorder arising from his childhood abuse and neglect. The psychologist said that the applicant’s “primary criminogenic treatment need is the elimination of deviant arousal patterns”, and recommended that he be referred to specialist treatment for sexual offenders as paedophilic disorder is indicated. The applicant told the psychologist that he had been using drugs since he was about 14. He said that on the day of the offences he had been drinking vodka and consumed cannabis, cocaine and MDMA. The applicant’s mother said he may be “fabricating his drug use” as he would have limited opportunity to use drugs given his care regime. The psychologist said this issue warranted further assessment, noting that the applicant may be “self-medicating with alcohol”.
Turning then to the first contended error. Section 9(4)(c) of the Penalties and Sentences Act provides that, in sentencing an offender for any offence of a sexual nature committed in relation to a child, the offender must serve an actual term of imprisonment, unless there are exceptional circumstances.
In the course of the sentencing submissions, after this provision was referred to by the prosecutor, the sentencing judge observed that “he’s served a period of imprisonment… so that’s really not in contest, is it?” The prosecutor agreed, but said he was raising it because of what had been submitted, in writing, on behalf of the applicant – that a probation order (only) be made. The sentencing judge repeated “But he’s already served a period of imprisonment”.
Importantly, when the applicant’s counsel commenced her submissions, the sentencing judge asked what her ultimate submission as to penalty was. The applicant’s counsel said:
There is a complexity in this case because, on the one hand, the applicant was said to be affected by a moderate intellectual disability, but it was not suggested by the psychologist that there was any causal connection between that condition, and the offending. Telling against that is the psychologist’s record that the applicant reported feeling sad about his urges (of sexual arousal to children) and expressed a willingness to engage in specialised sexual offender treatment. On the other hand, the psychologist found paedophilic disorder was indicated, which was consistent with the reported prior diagnoses of that condition, and which plainly was causally connected with the offending. That explains the psychologist identifying the applicant’s primary criminogenic treatment need as the elimination of deviant arousal patterns.
It is useful to keep in mind an aspect of the policy behind the principles established in cases like R v Verdins (2007) 16 VR 269 – which was captured by White J in R v Yarwood [2011] QCA 367 at [34] – namely, “if … the public were aware of the extent of his illness they would not require condign punishment to be imposed, rather the punishment should be ameliorated”.
In the case of a person with a paedophilic disorder, who has offended against two young children in public places, in a persistent and brazen manner, it is difficult to see how it could be appropriate to conclude that denunciation and deterrence (particularly deterrence of the applicant) would not remain relevant sentencing considerations. As already noted, the sentencing judge appropriately considered protection of children in the community to be the paramount sentencing consideration. Her Honour did not err by finding that general and personal deterrence were also relevant.
The final contended error is that the sentencing judge failed to ameliorate the sentence due to the applicant’s prior exposure to domestic violence. As the applicant acknowledges, the sentencing judge did refer to the fact that the applicant was exposed to domestic violence as a child, and neither the prosecutor nor his counsel below made any submissions about this factor, or referred the judge to s 9(2)(gb) or s 9(10B) of the Penalties and Sentences Act. Given the express reference to this, and the applicant’s history of sexual abuse, in the sentencing remarks, it is clear her Honour did take these matters into account, as required by s 9(2)(gb). The reference to exposure to domestic violence was a passing one, in the psychologist’s report, which was not sufficient to directly raise the operation of s 9(10B). This may explain why no reference was made to it by either counsel.
The sentencing discretion was not affected by any of the specific errors contended by the applicant. This was seriously concerning offending, by a troubled young man who posed a risk to the community if not supervised and appropriately treated. Whilst the physical acts involved may notionally place this at the lower end of seriousness for this kind of offending, the circumstances in which those acts occurred – persistent, brazen conduct, in public places, against two separate children – rendered the offences serious examples. The sentencing structure gave the applicant the benefit of no further time in custody, but an appropriate punishment, together with a long period of supervision on probation. It was a sentence the applicant’s counsel below quite reasonably said she could not cavil with. The sentence was not manifestly excessive.